BJQ v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-01-29

r v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BJQ (Applicant) Children's Guardian (Respondent) Representation: Counsel: G Moore (Respondent)

Solicitors: Crown Solicitor's Office (Respondent) BJQ (Applicant in person) File Number(s): 1510351 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, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

Introduction

The applicant, known as "BJQ" in these proceedings, on 22 June 2015 filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") concerning a decision of the Children's Guardian, made on 2 June 2015, to refuse to grant a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.
The applicant applied for a working with children check clearance on 1 October 2013.
The Children's Guardian conducted an assessment of risk and imposed an interim bar in accordance with section 17 of the Act dated 1 August 2014. As a result of the interim bar, the applicant was not permitted to legally work in a child related role in his employment.
On 23 March 2015 the Children's Guardian forwarded a Notice of Proposed Refusal of Application under section 19 of the Act. The letter informing the applicant that the clearance was refused was sent to him on 2 June 2015.
The Act came into force on 15 June 2013. The parties correctly conducted the hearing and made submissions on the basis that the amendments introduced into the Act in 2015 do not apply to this particular matter.

The issue

The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or 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.

The evidence relied upon in the hearing

The applicant relied upon the following documentary material: 1. Application filed 22 June 2015 including letter dated 2 June 2015 and from the Children's Guardian - Exhibit A1; 2. Statement by the applicant dated 19 November 2015 and filed 20 November 2015 (2 pages); Reference dated 5 September 2014-Exhibit A2; 3. Psychological assessment prepared by Istvan Schreiner, Clinical and Forensic Psychologist dated 14 November 2015 filed 20 November 2015- Exhibit A3.
The respondent relied upon the following documentary material: 1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 13 August 2015, comprising 350 pages - Exhibit R1; 2. Volume of Further Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 18 January 2016, comprising 27 pages- Exhibit R2; 3. Submissions for the respondent dated 26 January 2015 and filed 27 January 2015 which were not marked as an exhibit, but were read.
The applicant gave oral evidence and was cross-examined on 29 January 2016. The applicant's psychologist Mr Schreiner was available but not required for cross-examination.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.
The Tribunal has been assisted by the oral submissions of the parties.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a statement by this Tribunal of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous two paragraphs of these reasons is as the Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
The practical or forensic onus but not the legal onus is thus carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is identified for the parties in this review application.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "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."
There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
The objects of the Act are set out in section 3 which provides: "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."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows: "14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person."
The applicant was properly the subject of a risk assessment due to the fact that proceedings were commenced against the applicant for an offence specified in clause 1 of Schedule 2, and the offence was committed as an adult, and the applicant is not because of those proceedings a disqualified person: see clause 1(1)(b) of schedule 1 of the Act. The offences with which the applicant was charged and proceedings commenced were under section 66C(4) Crimes Act 1900 (NSW) of aggravated sexual intercourse with a girl aged 14 . The proceedings were dismissed after committal but before trial and after the victim's death. Those provisions of the Crimes Act are specified in clause 1 (1)(h) of schedule 2 of the Act.
The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test which must be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is guided by the decision in the Supreme Court BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order: "However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [33].
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act. The applicant has not asked for any conditions to be attached to any grant of a clearance.

The Issue

As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].
The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

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. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.
Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections. The reasons provided by the Children's Guardian for refusal of the application for a clearance form part of Exhibit R1 at page 120.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act provides as follows: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
Section 30 of the Act provides as follows: 30 Determination of applications and other matters (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. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.
Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.

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

The applicant is not a disqualified person.
The applicant was charged under section 66C(4) Crimes Act 1900 of aggravated sexual intercourse with a girl aged 14 and the charges were dismissed after committal, before trial, after her unfortunate death. The applicant was employed as a youth worker in a residential facility providing "intensive foster care" with high needs children. The applicant recognises and states in his statement to the Tribunal that the girl was a "high needs child": Exhibit A2. The girl was a resident in that facility.
The respondent submits that this Tribunal could find on the balance of probabilities that the applicant engaged in sexual intercourse with the victim. Of course, the standard of proof in relation to such a finding is not the criminal standard, which is 'proof beyond reasonable doubt'. Having regard to the gravity of the matters alleged and the circumstances in which the allegations arise is part of assessing whether the standard of proof, on the balance of probabilities, has been attained: section 140 (2) Evidence Act 1995 (NSW); Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.
The matters which caused the refusal of a clearance are very serious offences involving, as they do, aggravation because the applicant was working as a carer for the victim.
The Director of Public Prosecution ('DPP') did not proceed with the criminal proceedings brought against the applicant once the victim passed away. The letter which the DPP wrote to the Children's Guardian concerning the reasons for not proceeding with the prosecution is contained in Exhibit R1. The DPP stated: "Our Office did not proceed with this matter as the complainant passed away. Despite the fact that there was forensic evidence supporting the complainant, there were some inconsistencies in relation to statements made by her prior to her passing, that it would have been necessary for her to be available for cross examination, which given her passing was obviously not possible."
The victim was reluctant to be interviewed in the first JIRT interview. The victim subsequently agreed to be interviewed. The complainant also told another young person at the refuge that the allegations were not true, which was at the same time that the applicant was there and still working. Subsequently, it is said that the victim told that same person that in fact the sexual assaults actually occurred.
The forensic evidence referred to by the letter from the DPP is the presence of DNA and semen belonging to the applicant which was found on the victim's underpants. The medical evidence which formed part of the brief of evidence in the prosecution was collected the day after an alleged night time incident of sexual intercourse occurred. A number of items of clothing worn by the victim and bedding present in her bedroom were tested by the New South Wales Forensic and Analytical Science Services Unit. In particular, the underwear of the applicant showed evidence of recovered DNA and semen that had the same profile as the applicant: the medical evidence stated "this [DNA] profile is expected to occur in fewer than 1 in 100 billion individuals". This is strong evidence that the applicant had sexual intercourse with the victim.
The applicant's employer conducted an investigation of the allegations against the applicant and concerning which he faced the previously referred to charges. Between July 2014 and January 2015 the legal counsel from the applicant's employer conducted an internal investigation report for release to the New South Wales Ombudsman. That report is part of Exhibit R1 commencing at page 70 of that exhibit. The legal counsel investigated four particular allegations.
The first allegation which was investigated was that the applicant had sexual intercourse with the victim while performing his duties as a youth worker rostered on a sleepover shift and that the sexual intercourse had occurred on numerous occasions. This allegation was substantiated by the report.
The second allegation is that the applicant had shown the victim images of an inappropriate and sexual nature on his mobile phone. This allegation was not substantiated.
The evidence is that the applicant, however, retained a sexually provocative photo of one of the residents which was sent to him on his mobile phone, for 5 months until he was questioned by the police. The applicant could not remember whether he told anyone he had received the photo and did not show the photo to anyone.
The third allegation is that the applicant had contacted the victim outside his work duties by various electronic means contrary to the policies and procedures in place for maintaining professional boundaries with clients. This allegation was substantiated. The applicant also says that the victim contacted him on his mobile phone outside work hours.
The fourth allegation was that another youth worker had sexual intercourse with the victim while performing his duties as a youth worker rostered on a sleepover shift and that the sexual intercourse had occurred on numerous occasions. This allegation was substantiated but it relates to another person, not the applicant.
In the report for release to the New South Wales Ombudsman there is recorded that a telephone call was received from a cafe owner where the victim was employed, which occurred a number of days prior to the incident which led to the discovery of the DNA and semen on the clothing of the victim. The cafe owner alleged that the victim was involved with two male workers at the facility who had done something extremely inappropriate and it was of a sexual nature. This report was not made immediately to the authorities. The cafe owner made a second phone call to a different person 2 days later where procedures were immediately put in place to provide better for the safety of the victim. These procedures however were in the light of subsequent events inadequate.
The investigator had little doubt that the alleged sexual assault by the applicant on the victim occurred and it was supported by the forensic evidence. The investigator determined on the balance of probabilities that the other allegations of inappropriate conduct by the applicant towards the victim more likely than not occurred as alleged.
The applicant suggests that the DNA samples and semen were contaminated samples, with his DNA present, however the applicant has not explained how that could have come about except to say the allegations of sexual intercourse with the victim are "lies".
The applicant has provided a report by Mr Istvan Schreiner in support of his application. The Children's Guardian submits that the report does not assist the applicant because the recommendations that he makes are as follows: "From the assessment results and discussions with him [the applicant], it is not possible to provide direct recommendations regarding his suitability to work with children." (Emphasis in original)

The period of time since those matters occurred and the conduct of the person since they occurred

The time which has elapsed since the conduct which led to the assessment of risk is just under 4 years.
The applicant has since that time been employed as a truck driver. The applicant has also worked as a cleaner.
The applicant is a father with a 6-year-old daughter whom he sees regularly and he has told the Tribunal that he is not currently subject to supervision of his time spent with her.

The age of the person at the time the offences or matters occurred

The applicant was aged 26 in 2012 when the incident of sexual intercourse giving rise to the charges, was alleged to have occurred.

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

The victim was aged 14 and in year 8 in High School at the time of the conduct.
The victim was vulnerable due to her age, background history and due to the relationship between the applicant and the victim. The applicant was employed to provide care for the victim. The applicant recognises in his statement to the Tribunal that the girl was vulnerable because she was a "high needs child."
It is assessed by the investigator that it was likely that the victim did not fully appreciate the seriousness of the allegations that she made, nor did she understand the consequences which would be likely to result from those allegations. Upon a fair reading the interviews that is a reasonable assessment. During the second interview with the police the victim simply told police the events as they occurred and as she recalled them. The answers that she gave were quick and concise and when she was asked a similar question later in the interview she gave consistent answers. This is in direct contrast to her attitude which was exhibited at the commencement of her first interview where she was evasive and unhelpful in her responses.
The investigator formed the view that the attitude exhibited by the victim in the first interview with police was caused by the encouragement of the applicant to tell the police that she had "made up" the allegations. The victim refers to this behaviour by the applicant in her second statement and the applicant confirms his encouragement in his statement. The applicant says that he encouraged her to tell the truth after she told him that she made the allegations about him. This is recorded in the police interview with him. Despite the attitude of the victim, the timing of events in the first statement does correlate with the timing of the events as ascertained by other evidence.
The Tribunal has had the benefit of reviewing both the report and the evidence upon which the report is based. The Tribunal has formed a view that the investigator's report should be accepted and that the evidence relied upon establishes the allegations on the balance of probabilities. The Tribunal finds that the allegation of sexual intercourse is established on the balance of probabilities.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

There was 12 years age difference between the applicant and the victim.
The applicant was employed as a youth worker in the residence of the victim. The applicant was employed to provide care for the victim.
The victim told examining medical practitioner at Sydney Children's Hospital where she was examined that she had approximately 3 previous sexual encounters with the applicant in the 5 months prior to her examination. The victim disclosed to the medical practitioner that she had sexual intercourse with the applicant at approximately 1am the previous night which involved penile-oral penetration and penile-vaginal penetration.

Whether the person knew, or could reasonably have known, that the victim was a child

The applicant knew that the victim was under the age of 18 years.

The person's present age

The applicant is currently 30 years of age.
The applicant has matured slightly and has the legal responsibility of providing for a young child.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

The applicant does not have a criminal record. The applicant has had 3 interim AVOs relating to relationship difficulties. The AVO proceedings were dropped.
There are no offences for which the applicant has received a conviction or for which he has been discharged by a Court.
The applicant denies any wrongdoing in relation to the allegations which led to the charges against him pursuant to section 66C of the Crimes Act 1900.
The former partner of the applicant worked at the same facility but in a supervisory role. The victim told the partner that the applicant told the victim that the supervisor had seen "hickies" on the applicant's neck. The partner remembered then having seen marks on his collarbone and upper body. The partner teased the applicant about it and he told her that he had a one-off experience with a 19-year-old female. The victim was also able to accurately recite to the partner the applicant's phone number. The partner also gave a statement to the police in which she alleged that the victim had contact with the applicant and their young daughter on the same day of the attendance at the hospital, away from the facility. It appears from the applicant's mobile phone records that the applicant went to pick up the victim in Randwick. The victim spoke to the partner about the applicant in a way which indicated that she had an intimate knowledge of the applicant.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

The applicant relies upon the evidence of Mr Istvan Schreiner contained in a report dated 14 November 2015 and filed in the tribunal on 20 November 2015: Exhibit A3. Mr Schreiner in effect conducted a risk assessment.
The Tribunal is aware of the caution which should be attached to risk assessments and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 at [67] and BKV v Children's Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children's Guardian [2016] NSWCATAD 3 at [91]-[92].
In essence, what expert witnesses in this Tribunal have stated is that prediction of a relatively uncommon behaviour such as sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and "gut feeling" play a determinative role in making a judgment.
Because the applicant has not been convicted of any offence, many if not all of the actuarial risk assessments are not applicable.
The applicant has seen the clinical psychologist Mr Schreiner for the purposes of these proceedings. Mr Schreiner's recommendation is referred to previously and it does not assist the applicant. The applicant denied all charges against him, including behaving inappropriately and not maintaining professional boundaries with the victim in his care.
The applicant has not acknowledged to the Tribunal any wrongdoing in relation to his behaviour or shown any real insight into the allegations made against him.
The Tribunal has formed a view that the evidence relied upon establishes the allegations resulting in the charges under section 66C(4) Crimes Act, but on the balance of probabilities not necessarily to the criminal standard of proof. The Tribunal finds that the allegation of sexual intercourse is established on the balance of probabilities.

Any information given by the applicant in, or in relation to, the application

The applicant has provided information including a psychological report and references from supportive friends. The applicant has also provided his statement and was cross-examined in the Tribunal.
The Children's Guardian has not submitted that the applicant has failed to provide relevant information.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
The Children's Guardian submits that a finding that the allegations that the applicant engaged in sexual intercourse with the victim can be made on the evidence available, and the applicant should not be granted a working with children check clearance.
The respondent submits that a real and appreciable risk to the safety of children is present.

Consideration

The finding of the Tribunal is that on the balance of probabilities the applicant had sexual intercourse with the victim. In those circumstances, it is the Tribunal's determination that the applicant abused his position for sexual gratification with a highly vulnerable young girl.
The behaviour was part of a pattern of repeated events, and is relatively recent. If repeated, the concerning behaviour would perpetrate harm to other children. There has not been provided evidence of significant and sustained positive changes since the behaviour occurred. Recurrence of the concerning behaviour over a period is established by the evidence, and genuine and sustained effort to remedy the conduct and past behaviour is not evident on the evidence provided to the Tribunal.
The behaviour, if repeated, would be more likely than not to do significant harm and the consequences are likely to be serious to children. The paramount principle under the Act includes protection of children from abuse and suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged.
The applicant has identified only very limited mitigating factors which would operate in his favour.
The applicant has not acknowledged or shown any insight into the effect his conduct may have had on the victim of his sexual transgression. The applicant has shown no apparent remorse. Remorse on its own, in any event, is insufficient to ameliorate risk.
The applicant is unrepentant about his behaviour and denies it occurred in the face of very persuasive evidence.
The Tribunal it is unable to properly assess at this time whether the applicant has the capacity to change his behaviours even if he had the desire to change.
The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Conclusion

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children posed by the applicant.
The evidence received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
If the Tribunal is in error in concluding that there is a real and appreciable risk of harm to children, it is concluded on the balance of probabilities that the circumstances surrounding the course of conduct by the applicant means that there is a risk to children or that the existence of a risk has not been disproven.
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act, the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. The decision of the Children's Guardian should therefore be affirmed.

Orders

The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 2 June 2015 to refuse to grant the applicant's Working with Children Check clearance is affirmed. 2. The application for review of the decision of the Children's Guardian filed 22 June 2015 is otherwise refused and dismissed. 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: 20 May 2016

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Judgment (22 paragraphs)

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Legislation Cited (7)

Cases Cited (34)