BHL v Children's Guardian

NCAT Administrative and Equal Opportunity|2014-10-30

The applicant's present age

As I have mentioned, the applicant is 29 years of age.

The seriousness of the applicant's total criminal record

As I have noted, the applicant was convicted, on a plea of guilty, of an offence of possess a prohibited drug (cannabis), possess a prohibited weapon (can of Mace) and goods in custody (cash). These charges arose out of the police investigation into the sexual assault matters. In executing a search warrant at the applicant's home police found 197.6 grams cannabis leaf, an opened can of Mace (pepper spray) and $5,530.00 in cash. Scales, aluminium foil and plastic resealable bags, used in the packaging and distribution of prohibited drugs were also found in the applicant's premises. In addition to this a device for smoking cannabis was found together with three new cans of pepper spray still in their packaging. These were found in the applicant's bedroom together with the cash. The applicant did not provide any explanation about these items found at his home.
Other than the abovementioned convictions, the applicant has no prior or subsequent convictions.

Any information given by the applicant

As I have noted the applicant relied on an affidavit sworn by his mother and also his current partner. In her affidavit the applicant's mother explained that her marriage to the applicant's father was a difficult one and involved acts of violence and cruelty by him on her. She said she and the applicant moved back to Sydney in March 1990 when the applicant was 4 years old. She explained that at the time she and the applicant returned to Australia the applicant's passport was in the name of his father. She said that when she enrolled the applicant in his school she decided to change his middle name and surname, as she was concerned about threats that had been made by the applicant's father.
In her affidavit the applicant's partner said she and the applicant have co-habited as exclusive partners since September 2012. She said she and the applicant have a normal personal relationship and they intend to marry and have children in due course. She went on to say that she had never seen or heard any indication from the applicant of any sexual interest in young or underage girls and he has expressed no interest in homosexual relations at all. She also said she was aware of the allegations that had been made against the applicant in 2008. The extent of that awareness was not explained.
The applicant's partner did not add anything further in her oral evidence.

Any other matters the respondent considers necessary

The respondent contends that the decision the subject of review is the correct and preferred decision and should be affirmed.
In this regard the respondent argued that the applicant has not been truthful in his affidavit, nor in what he has told Mr Watson-Munro. Also of concern to the respondent was the applicant's apparent lack understanding of the issues surrounding consent, boundaries or the responsibilities of people in position of power such as teachers or instructors. In my view, it cannot be said that the applicant was untruthful in that he gave false evidence. This does not mean that I found him to be fully frank in the evidence he gave. This may be due to his lack of insight into the alleged misconduct and a desire to minimise his relationship with the victim. The latter I understand is not unusual in applications such as these. It is the former, which is of concern.

Conclusions and orders

As I have mentioned above, the issue for determination is whether, on the material before the Tribunal, I can be satisfied that the applicant poses a risk to the safety of children and if I am not so satisfied, I must find that the decision of the respondent is not the correct and preferred decision.
There is no presumption that the applicant poses a risk to the safety of children by reason of his misconduct, but the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.
In summary, and for the reasons set out above, I have found the misconduct allegations made and found sustained against the applicant to be serious. They involved a young student, a child, when the applicant was in a position of authority. They also involved unlawful non-consensual sexual intercourse. In my view, the applicant's blanket denials and ongoing failure to address the substance of his misconduct and the effect it had on the victim shows a lack of insight into his behaviour and the effect it had on the victim. It is this lack of insight, which in my view, is of concern and a factor relevant to the question as to whether the applicant poses a real and appreciable risk to the safety of children. In my view, this is not a matter adequately addressed by Mr Watson-Munro in his report or evidence.
At the same time, I accept the applicant has matured in the last 5 to 6 years and this is a factor, together with the fact that he is in a stable relationship, which is in his favour.
However, given the applicant's current lack of insight, I am not persuaded that, without some intensive misconduct specific counselling that these factors in favour of the applicant diminishes the risk he poses to the safety of children if placed in child-related work where he is in a position of authority. Counselling may of course address these concerns and if they do, it is open to the applicant to lodge a further application under subsection 21(2)(b) of the Act. Subject to the application being supported with new evidence, it will be open to the respondent to accept that application. However, on the basis of the material before Tribunal I am satisfied that the applicant does pose a risk to the safety of children at this time.
Accordingly, for the reasons stated above, I find that the decision of the respondent to refuse the applicant's application for a working with children check clearance is the correct and preferred decision and should be affirmed.

Order:

The decision of the respondent the subject of review is affirmed. 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 March 2015

The Role of the Tribunal

There is no dispute the Tribunal has jurisdiction to hear and determine the applicant's application: see section 27 of the Act, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decision Review Act 1997.
Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997.
That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
In determining this application, the Tribunal has power to make the following orders: 63 Determination of administrative review by Tribunal (1) … (2) … (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
For the reasons set out below, I have determined that the decision of the respondent is the correct and preferred decision and should be affirmed.

Consideration

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 by persons working in child-related work.
The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "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 have been accepted to equally apply to the word 'risk' as it appears in the 2012 Act.
As I have noted, the main issue is whether, on the material before the Tribunal and the applicable law, it can be found that the applicant poses a risk to the safety of children.
Set out below is the evidence and my findings in regard to the factors set out in subsection 30(1) of the 2012 Act.

At a glance

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Judgment (7 paragraphs)

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Cases Cited (3)

Cited By (39)