BJS v Children's Guardian [2015] NSWCATAD 47 | Case summary

Conclusions and orders

In my opinion, having regard to all the material before the Tribunal, the applicant has discharged his onus. His disqualifying offence was at the less serious end of the scale of such offences and it occurred some 14 years ago.
I agree with the respondent that the further reports of conduct of a similar nature in 2001 and 2003 are of concern. However, there is no evidence of any further reports since that time. As I have noted, pursuant to subsection 28(5) of the Act, the applicant is required to fully disclose any matter relevant to this application. While I understand the concerns of the respondent about the limits to which inquiries can be made about the applicant while he resided overseas, there is no material before the Tribunal to indicate that the applicant has failed to disclose a matter occurring outside of Australia, which the applicant has failed to disclose. The applicant's absence overseas has primarily been due to him competing internationally in his chosen sport and he has continued to compete internationally up to the date of hearing.
I accept the applicant has also made changes to his life, since 2003, in that he seeks to avoid being placed in circumstances similar to those giving rise to his disqualifying offences and the allegations that followed. He has moderated drinking of alcohol and only drinks occasionally and is in a stable relationship.
The evidence is that this has been an ongoing relationship for almost 10 years and they have been living as man and wife since 2011. While the applicant travels with his work and his sporting commitments and is often away from home, I note the evidence of the applicant's partner that they have purchased a home together.
Finally, as pointed out by the respondent, the victim of the disqualified offence and the other complainants were all aged 18 years and over. This does not lessen the seriousness of these offences and complaints, however, for the reasons I have stated, I am satisfied on the material before the Tribunal that the applicant has an understanding of what led to these offences and complaints and he has taken steps to ensure he does not reoffend or give cause for such complaints to be made against him.
Accordingly, I am satisfied that the applicant has discharged his onus and has rebutted the presumption that he poses a real and appreciable risk to children and on that basis it is appropriate for the Tribunal to make an enabling order.
Orders: 1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012 in respect of the two offences of sexual assault (unlawful and indecent assault), contrary to the Queensland Criminal Code Act 1899, of which he was convicted on 25 January 2002. 2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant with a working with children 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: 19 March 2015

Working with Children legislative scheme

The Child Protection (Working with Children) Act 2012 (the Act) makes provision for the regulation of those persons who can engage in, or continue to engage in child-related work: see section 3, which sets out the objects of the Act.
The term 'child-relate work' is broadly defined in section 6 of the Act. While it is unnecessary for the Tribunal to determine whether the person seeking a working with children check clearance was engaged in, or proposes to engage in 'child-related work', I note that work as a coach, as a team manager, an assistant coach, or assistant team manager for a sport, or activity for children is prescribed as child-related work for the purpose of the Act: see subsection 6(2)(d) of the Act and subclause 7(2) of the Child Protection (Working with Children) Regulation 2013.
The word 'children' is defined in subsection 5(1) of the Act to mean persons under the age of 18 years. Consequently, the word 'child' has the same meaning.
It is an offence for a person to engage in 'child-related work', unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children's Guardian for the relevant working with children check clearance: see subsection 8(1) of the Act. It is also an offence for an employer to employ, or continue 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.
Applications for a clearance are made to the respondent (see section 13 of the Act). Where the person seeking a clearance is a 'disqualified person', subsection 18(1) of the Act 18(1) provides that the respondent must refuse that application.
The meaning of a 'disqualified person' is contained in paragraphs 18(1)(a) and (b) of the Act as follows: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) 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, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence
The word 'conviction' is defined in subsection 5(1) of the Act to include 'a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.'
There is no dispute that the offences of which the applicant was found guilty in 2002 are offences specified in Schedule 2 of the Act and that the Court's finding of guilt of these offences makes the applicant a 'disqualified person,'
As I have mentioned, subsection 28(1) of the Act makes provision for a 'disqualified person' to make an application to the Tribunal for an enabling order, upon the refusal of their applicant for a clearance by the respondent.
Where an application for an enabling order is made, section 28 provides as follows: 28 Orders relating to disqualified and ineligible persons (1) … … (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 … 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) …
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.
Section 30 sets out how an application under section 28 is to be determined by the Tribunal. It is in the following terms: 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) …
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.
Finally, 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. Consideration
As I have noted, the main issue is whether the applicant has discharged his onus to rebut the presumption that he poses a real and appreciable 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 Act

BJS v Children's Guardian

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