BKO v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-05-27

The applicant's present age

The applicant is now 32 years of age.

The seriousness of the applicant's total criminal record

The applicant has an extensive criminal record. In addition to the offences which triggered the respondent's risk assessment (which are underlined below), the applicant has been convicted of the following offences:

As a juvenile 1. 8 July 1998: Steal from the Person. The applicant was ordered to enter into a recognizance for 12 months, to submit to supervision by the Juvenile Justice Services and to attend school regularly. 2. 13 January 1999: Assault Officer in Execution of Duty (x2); Resist Officer in execution of duty; Drive conveyance taken without consent of owner, drive in dangerous manner, drive in manner dangerous to the public. The applicant was ordered to enter into a bond to be of good behaviour for 2 years, with supervision of the Juvenile Justice Branch and to attend counselling. 3. 14 December 2000: Aggravated Robbery. The applicant was ordered to perform 50 hours of community service.

As an adult 1. 14 December 2001: Resist Officer in Execution of Duty. The applicant was fined $200. 2. 24 January 2002: Fail to Comply with Community Service Order. 3. 25 January 2002: Use Offensive language x 2, Assault occasioning actual bodily harm; custody of a knife in a public place; Larceny, Obtain Benefit by Deception x 3, Possess Prohibited Drug. The applicant was sentenced to six months' imprisonment, and fined $100. 4. 22 February 2002: Robbery In Company. The applicant was sentenced to four years imprisonment with a non-parole period of two years. 5. 28 September 2006: Possess Implements to enter/ drive conveyance. The applicant was sentenced to 4 months' imprisonment 6. 18 November 2010: Aggravated Robbery; Possess loaded firearm in a public place; possess unregistered firearm. The applicant was sentenced to imprisonment for five years and three months, with a non-parole period of two years and nine months.

The applicant's criminal record is serious, as is reflected in the sentences of imprisonment imposed in respect of (6)(7)(8) and (9). The evidence indicates that the offences were committed in the context of the applicant's substance use and anti-social behaviour. Despite being apparently drug-free for a period of years, the applicant relapsed into heroin use, and his offending in 2009 was directly related to his drug addiction and his need to fund it.

The likelihood of any repetition by the applicant of the offence or conduct and the impact on children of any such repetition

In regard to the likelihood of further offending and the applicant's violence risk, the respondent relied upon the Violent Offender Assessment report of Toni Quayle for the period September to December 2011. Ms Quayle's assessment indicated the applicant's static risk factors were as follows: use of violence and offending history from a young age; dysfunctional family history, including use of corporal punishment by his mother; poor educational and vocational history; prior supervision failure as a youth and young adult. The dynamic risk factors included: substance abuse; cycles of violence and use of weapons; impulsivity; criminal attitudes; boredom and poor work ethic; criminal peers; relationships, stability and lack of community supports. Dynamic Acute risk factors included: poor emotional control, namely, perceived disrespect; substance abuse; access to weapons. The applicant's strengths were listed as his supportive female friend; current positive attitude to supervision; developing resilience; developing understanding of victim empathy; acceptance of responsibility for offence; and voluntary and paid work.
The results of that risk assessment estimated the applicant's overall risk of re-offending as within the upper limit of the Moderate range. At the conclusion of her assessment, Ms Quayle indicated that the applicant would need to effectively manage his identified risk factors to reduce his level of risk. Ms Quayle made a number of recommendations, including that the applicant participate in the Ngara Nura program, the MRV pathway that includes Managing Emotions and CALM programs; counselling to assist in managing PTSD symptoms, referral to an employment service, educational courses to meet his goal of establishing his own personal training business; and assistance with finding positive leisure pursuits.
During his parole period, the applicant was referred for psychological sessions at the Wentworth Forensic Clinic. Mr Kevin O'Sullivan, the psychologist who reviewed the applicant on four occasions, reported in June 2013 that the applicant appeared to be managing his risk well, as demonstrated by studying and planning his own business venture realistically; involving himself in pro-social leisure activities; and associating with pro-social groups. Mr Sullivan reported that the applicant had an awareness of his vulnerabilities in terms of anger, and had a well-thought out plan for managing situations that present a risk of violence; including abstinence from heroin, and an ability to reflect on his own behaviour. Mr Sullivan noted the applicant "seems to have a remarkable ability to observe and learn from others and to try alternative ways of being".
In November 2014, the applicant was reviewed by Mr York Hong and Ms Anita McGregor, Psychologists from the Wentworth Forensic Clinic, for the purposes of an updated assessment of the applicant's violence risk, made at the request of the applicant's parole officer.
Mr Hong noted that the applicant's risk of violent reoffending in 2011 was assessed as being in the upper Medium range. However, on testing in November 2014, the applicant's risk rating was found to be in the Low range.
In explaining in this reduction in the risk rating, Mr Hong stated the applicant's static risk factors are becoming more removed from the applicant's current circumstances and therefore greater emphasis was placed on the applicant's dynamic factors. The dynamic risk factors specifically identified in the 2011 risk assessment were addressed in Mr Hong's 2014 assessment, with findings as follows:

Criminal personality - the applicant appears to have accepted prosocial influences due to treatment, insight and acceptance and motivation of prosocial life goals.
Criminal attitudes - the applicant endorsed few criminal attitudes. Rather he displayed prosocial attitudes which included desire to work and to be part of society and not be labelled by his criminal past.
Work Ethic - evidence suggests the applicant has a positive and prosocial work ethic, demonstrated by education and studies.
Criminal peers - the applicant appears to have insight into associating with criminal peers, and now associates with pro-social peers through his studies and touch football.
Emotional Control - the applicant appears to have benefitted from treatment and does not appear to be a current risk factor.
Weapon Use - this factor has become less relevant and there is no evidence or police intelligence of any current weapon use or possession.
Insight into Violence - Identified as strength for the applicant.
Substance Abuse - this risk factor is less prominent in light of the applicant's 5 years of abstinence. Although it remains an important risk factor, the applicant appears to have gained insight and coping strategies associated with his previous substance use, and no treatment seems necessary. However, if the applicant experiences crisis, he may require support to reduce risk of relapse.
Community Support - the applicant appears to have prosocial support. He states he has learnt how to access support if he requires it.
Violence Cycle - These have become less prominent and have been addressed via intervention. The applicant appears to have insight into his cycles of violence, and benefited from treatment. He admits that although he has insight while abstinent, he has identified that if he relapses he may not be thinking clearly.
Impulsivity - the applicant's behaviour since release suggests strong future planning and consequential thinking, which is identified as strength and a protective factor in reducing his violence risk.
Compliance with Community Supervision - the applicant has had few issues with compliance during the parole period and has demonstrated the ability to resolve issues.

Mr Hong also used the Measure of Criminal Attitudes and Associates (MCAA) to assess the applicant's violence risk. Mr Hong states the applicant's scores were within normal limits, suggesting that overall the applicant does not appear to have unusually elevated criminal attitudes or unusually large amounts of criminal associates.
A further tool used by Mr Hong during the assessment was the Structured Assessment of Protective Factors of Violence Risk (SAPROF). Mr Hong identified the applicant's strongest protective factors as (1) Intelligence (as evidenced by his completion of a number of education and skills courses), (2) Effective Coping Skills and (3) Self-Control (as evidenced by his abstinence from illicit substances, caffeine and cigarettes, as well as engaging in SMART and Managing Emotions courses, and the use of consequential thinking).
In his summary and recommendations, Mr Hong opines that the applicant has significantly reduced his risk of violent offending, resulting in the reduction from the upper Medium range to the Low range. Whilst the risk assessment did not specifically address the risk of working with children, Mr Hong noted the applicant's adult criminal history has not included specific violence against children or underage victims, suggesting that the applicant does not pose a specific risk of violence against children. As a result, Mr Hong opined that "if his current risk factors are managed and his protective factors remain in place, his overall risk of violence towards the general population as well as children would remain low".
However, Mr Hong identified four areas in which the applicant would benefit from further support or intervention: (1) Employment (the 2011 report identified that the applicant may become bored when faced with large amounts of unsupervised time which could increase his risk of offending); (2) Professional Care - (at the time of the report, the applicant had not engaged in professional care besides attending Narcotics Anonymous, but had shown interest in attending the Wentworth Forensic Clinic); (3) Positive Attitudes towards Authority - Whilst the applicant has complied with his parole order and community supervision since his release, he has self identified his automatic negative thoughts associated with authority figures; (4) Social Network - Whilst the applicant identified his close friend, his friends from his studies, and his touch football friends, as people who would support him if he was in trouble, this was not tested and is a potential treatment target.
Mr Hong noted the applicant has not experienced a situation of crisis and he has not felt the need to engage in his supports. Mr Hong states the applicant's risk of reoffending would be increased if he experiences drug relapse and disengagement from his goals; for example, loss of important social supports or employment, inability to work in the personal fitness field and/or failing the working with children check clearance risk assessment.
Mr Hong states gainful employment has been identified to be a strong protective factor against re-offending. He states the applicant is currently under-employed and would recommend some additional support for the applicant to secure stable employment preferably within his desired field of personal fitness.

Any information given by the applicant

The applicant relied on his statutory declaration dated 28 November 2014, as well as his oral evidence. The applicant has a Sri Lankan background and was raised by his parents who divorced when the applicant was a child. He subsequently resided in the care of his mother, who was very young, in a new country and with 3 young children to raise. The applicant said he was not provided with a nurturing environment and his physical and emotional wellbeing was unstable. As a consequence, at age 13, he left home and subsequently experienced periods of homelessness. He also started using alcohol and drugs at an early age; including marijuana and alcohol from about 10 -12 years of age and heroin from about 12-15 years of age. The applicant said that since leaving his mother's care, the only times he received residential, emotional and physical care were the periods he spent in juvenile detention centres and while he attended a school for homeless youth, at which he completed his Year 10 Certificate and received an award of excellence.
He states after leaving school he moved back into his mother's home and commenced employment at a cabinet-making factory. However, due to the tension in the household, he was told to leave. He became homeless once again, and was using heroin. He said that heroin "would later go on to have a stranglehold on me physically, emotionally, financially and spiritually". He said that he used heroin for many reasons, including peer pressure, the need to be part of a group, and to prove he wasn't scared of using.
He said he kept committing crime and eventually entered prison. He states that he can now see that before he went to prison, he was young, alone and desperate to belong and be accepted, and this resulted in him gravitating towards people older than him, believing that they cared for him. However, he stated those relationships with peers were destructive and co-dependent.
He states he first entered prison naïve and impressionable, and prison life was harsh for a teenager with a Sri Lankan background. He used violence as a means of defending himself, as he didn't want to join a gang or be a victim of physical and/or sexual violence. He said that upon leaving prison aged 22; the only thing he learned was how to look after his physical health. He did not undertake any education or programs to address his offending behaviour and he states he "left prison worse off than when I entered".
In relation to the Assault Occasioning Actual Bodily Harm offence in 2000, the applicant said he had seen a person looking at him, which he interpreted it as a look he did not appreciate, and which resulted in him throwing a container of fried rice at his face. The applicant said on impact, the container exploded and scratched the victim's cheek. Whilst unable to recall all of the specific details of the offence, he said he agreed with everything in the facts. He said he was very young and was trying to act tough. At that time, he was listening to rap music and associating with older people, for whom that type of behaviour would be accepted and applauded. He said he felt a need to act out aggressively to others, and whilst his use of alcohol and drugs were not an excuse for his conduct, it provided an explanation for it.
In relation to the offence of Robbery in Company in 2001, the applicant said he was homeless and using drugs (although withdrawing from them). He was walking around aimlessly and looking for drugs when he met with an associate/s who observed a woman on a mobile telephone. The applicant agreed he was acting as a look-out (while the associate took the phone).
In relation to his criminal offending, the applicant in cross-examination said he did not dispute any of the facts. He said that his offending was often in the context of seeking to obtain heroin. He said that emotionally, he had not matured and that his use of drugs had stunted his mental growth, and he lacked the ability to cope with setbacks, and deal with feelings and emotions.
In relation to the 2009 offences, the applicant said he did not disagree with the remarks of the sentencing judge. At the time of the commission of the offence, that applicant had been diagnosed with Post Traumatic Stress Disorder, and had been withdrawing from strong opiate medication prescribed to relieve the pain associated with his gunshot wounds. When the medication ceased, the applicant relapsed into heroin. He said he had taken sleeping tablets the night before he committed the offence, and on awaking the next morning with no ease of his symptoms, he planned to commit the robbery in order to obtain money for heroin.
The applicant states that his last offending in 2009 was the last time he used a drug. He said when he re-entered prison he made a decision that it was the last time he would be a burden on society. He said that while in prison, he avoided associating with people he knew previously, and undertook whatever education he could. He said he set a goal of finding accommodation and employment upon his release from prison.
In his evidence, the applicant said that he does not wish to go backwards in his life, and that he has learned how to prevent situations occurring that had previously led to his offending. He said that if he does come across anti-social peers it is only when he has attended the Parole Office, and not in any other context. He said that when he has come into contact with such persons, he is courteous and respectful. He said it is very easy for him to exit a conversation, and that he no longer has a need to please people.
The applicant also said that in the past he only had a narrow view of the services and supports available to him. However, he said that now he is very aware of such services and is confident in his ability to access them before the problem escalates out of his control. He said even if that were to occur, he is aware of the services he could turn to.
The applicant also said that if he is working with children and is confronted with a child with challenging behaviours being racist and disrespectful, he would say to the child to leave the situation and to return when the child is ready to come back and participate within the boundaries of mutual respect. If the behaviour occurs in a school setting, the applicant said he would direct the matter to a teacher. The applicant said his Australian Sports Commission course taught him that children who display challenging behaviours often do so in group situations, and in the context of a need to "show-off". The applicant said that situation is often best dealt with by allocating the child a specific task to undertake.
The applicant was cross-examined at length by counsel for the respondent. The Tribunal formed the view that the applicant was a credible witness and was frank and forthcoming in his evidence. He did not seek to minimise his offending, and did not dispute the facts as they were alleged. The Tribunal formed the view that the applicant is remorseful for his crimes, and is genuinely motivated to live a productive life, free from drugs and crime.
Ms Bonwick, a teacher at the school the applicant attended as a homeless youth, provided a reference in support of the applicant. Ms Bonwick has known the applicant for more than 10 years and is aware of his criminal offences and periods of imprisonment. In her view, much of that offending occurred in the context of his difficult upbringing. Ms Bonwick said she believes that there is so much good in the applicant and still believes this to be true. She states she never had cause for concern for his dealings with children or young adults while involved with the school. She considers him a good role model who she encourages to talk to the students about his own experiences.
Mr Brown, the senior counsellor at a youth & community services organisation, has known the applicant since the applicant was 16 years of age and living on the streets. Mr Brown is aware of the applicant's criminal record and the background to his childhood and youth. Mr Brown opined that the applicant is rehabilitated. Mr Brown expressed his belief, consistent with his belief about the applicant when 16 years of age, that the applicant is not intrinsically aggressive or violent. Mr Brown said the applicant has reflected on his place in the community and his role in the crimes he has committed. Mr Brown said that his organisation would employ him in the event a position is available and the applicant is provided with a working with children check clearance.
The applicant also relied on a reference provided by Mr Ajay Phillip, the applicant's former case worker at the Community Restorative Centre's Men's Transition Program. That program is a voluntary support program to assist men to transition from prison back to the community upon release, and includes assistance with accommodation, employment, welfare, drug and alcohol issues, and relationship issues. Mr Phillip stated the applicant contacted the Centre approximately one year before his release from prison, voluntarily seeking support to assist with his plans and goals, including to abstain from illicit drugs and alcohol, and to undertake education, employment and volunteering opportunities.
The applicant lived for several months in accommodation operated by the Centre, whose staff report the applicant was an exemplary tenant. Mr Phillip stated: "In my experience, (the applicant) has been exceptionally proactive in furthering the positive endeavours in his life and has demonstrated his desire and a consistent, driven work ethic towards success in his chosen field of Fitness, as well as genuinely pro-social endeavours and life choices through his positive community connections through his TAFE and sport social circles, to name a few". Mr Phillip stated that the applicant has been working hard towards a different life, pro-social and free from any future involvement in the criminal justice system, and had made good use of the Centre's support in helping to achieve his goals. Mr Phillip stated that he both personally and professionally strongly urges that the application for a working with children check clearance to be assessed positively.
The applicant did not provide any references from his recent employers. This is despite being offered a number of opportunities to do so during the application process. The applicant stated he has not done so as he does not believe it would be in his interests to alert his employers to his previous criminal history and to the fact that he was being scrutinised by the Office of the Children's Guardian. The applicant states there were no complaints about his conduct while working with children. He also said that when he was previously employed at a gymnasium, he was offered future work at any time.
The applicant told the Tribunal that he continues to attend counselling at the Wentworth Clinic and has a support worker from Wesley Mission. He said his plan is to obtain private accommodation and full time employment. In this regard, he said that the vast majority of the jobs he applies for require him to hold a working with children check clearance.
In his oral submissions to the Tribunal, the applicant stated that he agreed that child protection and the protection and safety and welfare of children is of the utmost priority. He said he has never been a threat to children. He said he has made every bad choice in life and there have been victims as a result of his actions, however, he has never abused or harmed children. He said that he has been to prison for his crimes, and has learned from his mistakes. He said he is a qualified children's trainer, and that there is no evidence of any complaint about his work with children. He said that his own experiences in childhood adds to his capability. He said that he has prosocial links to the community and has support from Ms K. He has employment available to him if he is able to receive a working with children check clearance.
The applicant told the Tribunal that he is truly remorseful for his crimes, and he comes before the Tribunal as a changed man, having made every effort to turn his life around. He said he has changed everything about him, and that he has not done so just when someone is around or watching. He submitted that the grant of a working with children check clearance would have a positive impact on himself and the community. He said it would enable him to gain employment, pay taxes, and encourage others to lead a healthy life, and be a role model for children. He said he plans to enrol in a Bachelor of Social Work degree at university to enable him to work with young people at risk to further this aim.

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.
The respondent submits that the applicant's 2009 offending was very serious. It involved a loaded weapon, was planned and was committed for the purposes of obtaining drugs. The respondent also noted the applicant's assault in 2000 was on a stranger and was unprovoked. He said both offences were in the context of a drug and/or alcohol use. The respondent points to the fact that fifteen months after the applicant's release from prison in 2007 he had relapsed into heroin use, and it was in the context of that relapse that the 2009 offending occurred. The respondent submits that while on drugs, the applicant has engaged in violent behaviour, and such violent behaviour, if repeated, may affect children indirectly.
The respondent also submits that while on parole, the applicant has had structure in the form of accommodation, support services, and parole conditions including drug testing. The respondent submits that the applicant's abstinence from drugs has occurred while the applicant has been subject to supervision and structure both in prison and on parole. The respondent submits that the truer test is when the applicant is no longer subject to parole, and has no restrictions in the community.
The respondent concedes that whilst the applicant has significantly reduced his risk of relapse, he has not yet experienced crisis. Cognizant of the fact the applicant's relapse occurred when he had isolated himself from supports and was unable to seek assistance, Counsel for the respondent noted Mr Hong's opinion that if the applicant does not engage in support services, the risk of violent re-offending would be increased.
The respondent therefore submits the three main areas of concern are as follows: 1. The absence of evidence of the applicant being drug free in circumstances where there are no parole conditions and he is not supported by a structured program; 2. The lack of evidence the applicant has experienced a crisis situation; 3. The lack of evidence the applicant would seek full assistance and support should he relapse into drug use.
The respondent submits that the situation might be cured with the passage of time, as it would enable a longer period of abstinence from drugs and a likelihood of a crisis arising. The respondent suggests the applicant may seek to enliven the discretion of the Children's Guardian under section 21(2)(d) to permit an early further application for a working with children check clearance at some time in the future, possibly in 2-3 years. However, the respondent submits that at the present time, it is too soon for the applicant to be granted a working with children check clearance.

Conclusions and orders

The issue for determination is whether, on the material before it, the Tribunal can be satisfied that the applicant poses a risk to the safety of children. There is no presumption that the applicant poses a risk to the safety of children by reason of his offending, but the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.
Whilst the Tribunal acknowledges that the applicant's criminal offences did not involve children, they included violent offences of a serious nature. There were a number of innocent victims, including those at whom the applicant pointed a loaded weapon. The applicant's offending was committed in the context of significant illicit drug use, and escalated in its severity. And despite having previously served sentences of imprisonment and experienced a period of abstinence from heroin use, in 2009 the applicant relapsed into heroin use and committed further violent offences.
At the same time, the Tribunal finds that the applicant has matured considerably in the last five years, and is genuinely motivated to change the course of his life. He has accepted responsibility for his past actions and is remorseful. He has engaged in treatment and counselling to address his violent past and his use of substances. He continues to attend counselling despite no longer being compelled to do so. He has undertaken education and training to maximise his prospects of employment, and has volunteered in a number of different charitable events and causes. He has started his own business and has engaged in employment. He now has a child for whom he has responsibilities, and has a close and very supportive friendship with Ms K, the baby's mother. He coaches a touch football team, engages in fitness on a regular basis, and leads a healthy lifestyle. All of these factors militate in the applicant's favour and he is to be commended for embarking on a path of rehabilitation.
However, the Tribunal accepts the respondent's submission that there has been insufficient time since the applicant's violent offending occurred. The applicant's parole period has ended only very recently, and as result, his offence has only just been completed. In the last five years and 4 months since the offending occurred, the applicant has either been in prison or on parole. The applicant has therefore not yet experienced an extended period of time without supervision or formal restrictions in place.
Relevantly, for approximately eight years between 2001 and 2009, there was an absence of violent criminal offending by the applicant. There was also a period of abstinence from heroin use. In this case, it has been only 5 years and 4 months since the applicant's last criminal offending and since his last relapse into heroin use. Whilst it is clear that the applicant has made very significant changes to his life and has reduced his risks, his offending cannot be said to have occurred in the more distant past.
It is evident that the applicant receives considerable support from Ms K. Her influence appears to be a very good one, and during the course of the proceedings she impressed the Tribunal with her commitment and assistance to the applicant. It is likely that she has played a significant role in the applicant's rehabilitation journey. However, the Tribunal notes that Ms K was also in the applicant's life around the time of his offending in 2009. Her presence was acknowledged by the sentencing Judge, who was similarly impressed with her capabilities. Yet, her friendship with the applicant was not, in itself, sufficient to prevent the applicant's relapse into heroin use and crime in 2009. Consistent with the submission of the respondent, and identified by Mr Hong in his psychological report, a failure by the applicant to engage in support services would increase his risk of violent reoffending.
In addition, the Tribunal notes that the applicant elected not to provide any corroborative evidence about his employment since his release from prison. The applicant's fear of alerting employers to his criminal history and the Children's Guardian risk assessment process, meant that there was no corroboration of the applicant's account that he has not been the subject of any workplace complaints or disciplinary action. It has also meant that there is limited evidence before the Tribunal of the applicant's employment and workplace experience, including when previously working with children.
The Tribunal acknowledges that the applicant has been assessed as presenting a low risk of violent reoffending. However, a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the applicant poses a risk to the safety of children.
The Tribunal accepts that 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. Whilst the applicant has indicated he does not propose to work with children specifically, this is not necessarily material to the Tribunal's determination.
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. As indicated earlier, the offences with the applicant has been convicted are serious and involve violence. Whilst children were not the victims of the applicant's offences, the victims in his offences were innocent and indiscriminate. It is clear that children can be indirect victims of violence, including in situations where the perpetrator is undiscerning as to the victim of his or her crime. On the balance of probabilities and taking into the seriousness and gravity of the applicant's offences, the Tribunal cannot be satisfied at the present time that the applicant does not pose a risk to children.
However, the Tribunal's refusal on this occasion to affirm the respondent's decision to refuse a working with children check clearance does not necessarily mean that the applicant will fail to obtain a clearance in the event he makes a further application at some time in the future. Whilst a person is prevented from making a further application for a period of five years after the refusal notice was given, a change of circumstances can invoke the discretion of the Children's Guardian to permit a further application earlier than five years (see sections 21(1)(a) and 21(2)(d)). Indeed, such a scenario was specifically raised by the respondent in his submissions to the Tribunal.
In this regard, the Tribunal finds the applicant's progress has been very positive and he has demonstrated commitment to his rehabilitation. With further treatment and counselling as suggested by Mr Hong, and further employment (in areas that do not require a such a clearance), the applicant may wish to consider an early application for a working with children check clearance in the future. However, it will be a matter for the Children's Guardian to determine, on the information provided by the applicant at that time, as to whether that application be permitted.

Order: The order of the Tribunal therefore is: 1. The decision of the respondent dated 19 June 2014 to refuse to grant the applicant a working with children check clearance is affirmed. 2. The application for review of the decision of the Children's Guardian filed on 14 July 2014 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: 27 May 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 Decisions Review Act 1997.
The issue to be decided by the Tribunal 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 in relation to the applicant: (see section 63 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. The working with children legislative scheme
The object of the Act is to protect children by not permitting disqualified persons, without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).
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. (See section 4 of the Act).
Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check clearance. A breach of section 8(1) is an offence.
The definition of "child related work" includes a "worker engaged in work in a child related role." (See section 6(1) of the Act).
Section 6(2) of the Act provides that the work referred to for the purpose of section 6(1)(a), is work for, or in connection with any of the activities, as listed in section 6(2)(a) to (m), and which are declared by the regulations, to be child related work.
Direct contact with children is defined in subsection 6(4) to mean physical contact, or face to face contact. Where a person is granted a working with children check clearance, that clearance authorises the person to work in any child-related work prescribed under the Act or the Child Protection (Working with Children) Regulation 2013.
Part 3 of the Act deals with working with children clearances. That Part is divided into 6 Divisions as follows: 1. Division 1 sets out the classes of clearance. There are essentially two classes of clearance, a volunteer clearance authorising a person to engage in unpaid child-related work and a non-volunteer clearance authorising a person to engage in paid and unpaid child-related work: (See section 12 of the Act) 2. Division 2 deals with applications for clearances: (See section 13 of the Act) Such applications are made to the Children's Guardian; 3. Division 3 deals with risk assessment of persons who have made an application for a clearance or who are holders of a clearance; 1. Section 15(1) provides that the Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance to determine whether the applicant poses a risk to the safety of children. 1. Division 4 deals with determinations by the Children's Guardian, of applications for clearance; 2. Division 5 deals with the duration of a clearance (5 years) and the circumstances in which a clearance can be cancelled: (See sections 22 to 24); 3. Division 6 - establishes the working with children register.
Section 18(1) of the Act provides that the Children's Guardian must not grant a working with children check clearance to a 'disqualified person'. (Broadly these include persons convicted of an offence, committed as an adult and specified in Schedule 2 of the Act.)
Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
The word 'conviction' is defined in section 5(1) 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 conviction.'
Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian, including a refusal to provide a working with children check clearance. 1. 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) A person whose clearance is cancelled by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (3) A person who is subject to an interim bar imposed by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months. (4) An applicant must fully disclose to the Tribunal any matters relevant to the application.
Section 30 sets out how an application under Part 4 of the Act is to be determined by the Tribunal. It is in the following terms: (i) 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.
In determining the application under s 27 of the Act the Tribunal is to decide what the correct and preferable decision, having regard to all the material before it, including material which may not have been before the Children's Guardian. (See s 63 Administrative Review Act 1997)

The Trigger for the risk assessment

The trigger for the risk assessment is the applicant's convictions for offences of violence considered sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children pursuant to clause 1(1)(6) of Schedule 1.
Section 14 of the Act requires a risk assessment if any of the matters specified in Schedule 1 of the Act apply. Nature of the proceedings
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, 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]

Burden of Proof

The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].
An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
There is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act.
The applicant has a duty to disclose all relevant material. (See section 27(4))
Although the applicant has no legal burden he does have a practical or forensic onus (Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53) and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.

Risk to the safety of children

In this application, an issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. The Tribunal must have regard to the matters contained in section 15(4) and section 30(1) of the Act in deciding this issue.
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]. His Honour's consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said: '42 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". ...'
These remarks of His Honour have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8 and RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10].
The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (11)