The seriousness of the applicant's total criminal record
Apart from her conviction for murder, BMC has one conviction for possession of drugs in 1994 and a conviction for the assault of a postmaster in 1994.
[3]
The likelihood of any repetition by the applicant of the misconduct and the impact on children of any such repetition
The Tribunal accepts the submission put forward by the respondent that the principal risk factor that would lead to further misconduct by BMC is drug use. BMC has agreed that she used drugs prior to the murder offence and that drugs have been an element in her offending in general. Her two youngest children were born with a methadone dependency and, prior to her incarceration, had been removed from her.
BMC has given evidence that she gave up using drugs in 2002. The respondent agrees that, on the evidence, BMC's samples for urinalysis were clean from this point and that there is no evidence that she has taken any drugs since her release.
The respondent put forward BMC's relationships as a further risk factor for future misconduct. On the evidence before the Tribunal, it is clear that BMC enjoys a close and supportive relationship with her family. Her parents attended the Tribunal proceedings and her eldest daughter provided a detailed statement setting out her mother's attributes and declaring that she trusts her mother to care for her own children. There is no evidence to contradict BMC's evidence that her relationship with her current partner is stable and supportive and that he does not take drugs.
In her 2014 report, the psychologist Ms Skinner-Taylor assessed BMC as being 'at low risk of violence to anyone - adults and children. Therefore she presently poses a low risk of harm to children.'
[4]
Any information given by the applicant
BMC has provided a lengthy affidavit and submitted references and statements to the Tribunal in support of her application. Included in the references are one from her daughter, from the former general manager of her correctional centre who has known her for eight years and from a work colleague who has known her for seven years. BMC has provided a psychological assessment addressing the question of her risk to the safety of children. She has given oral evidence to the Tribunal and her parole officer has given oral evidence in support of her application.
[5]
Any other matters the respondent considers necessary
The respondent has noted that BMC does not require a working with children check clearance in order to continue her current work. For this reason, a failure to obtain the clearance would not impact on her current employment.
[6]
Conclusion and orders
There is no dispute that BMC has achieved remarkable progress during her incarceration, whilst on works release and now that she has been released to parole. She has been part of the community on a limited basis as part of the works release program from April 2012 and on a full-time basis since being released to parole in September 2013. In all, this is now a period of three years.
The question for the Tribunal is this: in light of all her circumstances, including these time in the community, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, BMC must be granted a working with children check clearance.
Having considered all the evidence before it and having taken into account those issues set out in s30(4), the Tribunal is not satisfied that BMC poses a real and appreciable risk to the safety of children.
The Tribunal accepts that BMC has been back in the community for a relatively short period: three years since she started her works release program and twenty months she has been released to parole. During this time, however, she has shown herself to be an exemplary worker and member of the community, as shown by the evidence of her employers and parole supervisor. There is no dispute that she has been drug free since 2002, now 13 years, and there is no evidence that she shows any likelihood of returning to a lifestyle that involves drug taking. Her parole supervisor attests to her progress and denies that she is a risk to the safety of children.
It has been close to two years since BMC applied for a working with children check clearance. At the time of application, she had not yet been released to parole and the Tribunal can understand the respondent's concerns in granting a clearance under such circumstances. In the interim, BMC has continued to flourish personally, as a parent and in her employment. There is no indication of any lapse in her drug-free status or any likelihood of this. She has provided references from people who have known her for some years and have watched her progress. She has been assessed as not posing a risk to children.
In all the circumstances, and taking into account the matters set out in s30(1) and s15(4) of the Act, the Tribunal considers that the preferable decision is that the applicant does not pose a risk to the safety of children and should therefore receive a working with children check clearance.
[7]
Order
The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children check 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: 21 April 2015
Parties
Applicant/Plaintiff:
BMC
Respondent/Defendant:
Children's Guardian
Cases Cited (3)
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 Child Protection (Working with Children) Act 2012, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997.
Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997.
This means that 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 affirm, vary or set aside the decision: see subsection 63(3) of the Administrative Decisions Review Act 1997).
Consideration
The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a person but to eliminate possible risks to the safety of children by persons working in child-related work.
The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [420, 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.
It is BMC's submission that, on the evidence before it, the Tribunal should find that she is drug-free and committed to remaining so, that the risk of her committing further offences is no greater than for any other person and that she does not pose any greater risk to the safety of children than any other adult.
The respondent opposes the application on the basis of the seriousness of BMC's offence and the likelihood of further violent conduct in light of the short time BMC has been back in the community. According to the respondent, this short period of reintegration into the community after a long period in custody has 'only provided a limited opportunity to evaluate how the applicant will cope with release and the stressors which led to her previous lifestyle and violent behaviour.'
Set out below is the evidence and the Tribunal's findings in regard to the factors set out in subsection 30(1) of the 2012 Act.