BPQ v Children's Guardian [2015] NSWCATAD 148 | Case summary

NCAT Administrative and Equal Opportunity|2015-06-22

The applicant's present age

The applicant is 50 years old.

The seriousness of the applicant's overall criminal history and the conduct of the person since the offence

The applicant has two recordings of a criminal conviction. In addition to the disqualifying offence there is a dishonesty offence for which he pleaded guilty in 1987.
I find that the overall conduct of the applicant since the offence has been characterised by attempts to reform his attitudes and behaviour and since 1987 the applicant has had no contact with the criminal justice system.

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

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

The applicant provided references in support of his application including from a Scout leader who has known the applicant since around 2006. In his statement he includes reference to the applicant disclosing to him the nature of the offence that prevented his from obtaining a working with children check clearance. He concludes that even with this knowledge, he hopes the applicant is able to obtain a clearance so he can continue to work in the Scouting movement.
At the hearing the applicant tendered photos of him with others at Scouting events. The applicant provides evidence as to the importance of his involvement with the Scouting movement, particularly in the context of him spending time with his sons. The applicant states "I have also felt strongly that I have been giving back to the community by my voluntary service. It has been a way of using my skills, talent and abilities to help children have opportunities that they otherwise would not get and to model and teach community service, resilience and leadership".
I accept that the applicant is genuine in describing the importance to him of participating as a volunteer in the Scouting movement. I accept it has become an important aspect of his family life. I also accept that being a part of the Scouting movement has provided him with a sense of giving something of value back to the community. Although the applicant has asked that I take these into account, they are not relevant in assessing whether the applicant poses a risk to the safety of children.

Any other matter that the Children's Guardian considers necessary

The respondent opposes the application. The Children's Guardian correctly identifies to the offence as one that is serious as the victim was placed under pressure and coerced into performing a sexual act on the applicant. The applicant knew it was wrong but still committed the offence. Counsel for the respondent drew attention to some inconsistencies in relation to the extent of the applicant's insight into his behaviour at the time of the offence as well as currently, including a suggestion that the applicant may still be trying to place some blame with the victim.
However I am persuaded by Dr Baron's evidence, his expert report and the evidence of the applicant himself that the applicant does appreciate the seriousness of his offending conduct and that of the men he was with, and that what they did was wrong. I find that his attitude towards the offence and to the safety of children generally to be such that I do not believe that he would pose a real and appreciable risk to the safety of children.

Conclusion and orders

The disqualifying offence is a serious one. However it happened 30 years ago when the applicant was, on his admission, at a problematic stage of his life. Since that time he has taken steps to improve himself and apart from an offence in 1986, which he took responsibility for, he has had no other contact with the criminal justice system. No other complaints in relation to conduct akin to the disqualifying offence have been disclosed in these proceedings.
I find the applicant to be family-orientated and protective of his children. He struck me as genuine and I accept his evidence that he appreciates the seriousness of the disqualifying offence and accepts responsibility for it.
I find the evidence provided by Dr Baron at the hearing and his expert report persuasive. The conclusion he draws after psychometric testing and clinical assessment is that the applicant does not pose a risk to the safety of children.
On all the evidence I have had put before me I find that the applicant has displaced the presumption that he is a risk to the safety of children. I find that the applicant has established to the standard that is required, that he does not pose a real and appreciable risk to the safety of children. Accordingly the application should be granted.
I make the order that: 1. The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of a conviction on 6 May 1985 in the Melbourne County Court under section 48(1) of the Crimes Act 1958 (VIC); and 2. The Children's Guardian 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: 14 July 2015

Child Protection (Prohibited Employment) Act 1998(NSW)

Statutory Scheme

The object of the Act is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances: the Act, s 3.
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.
Children are defined as persons under the age of 18 years: the Act, s 5.
The Act makes it unlawful for a person to engage in "child-related work", unless they hold a "working with children check clearance of a class applicable to the work" or a current application has been made by the worker to the Children's Guardian for a clearance: the Act, s 8.
Relevantly, child-related work is defined under section 6 of the Act to include "clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children". Neither party disputed that volunteering for the Scouts is child related work.
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, which includes 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. Neither party disputed that the offence results in the applicant being a disqualified person under the Act.
Section 28 (1) of the Act provides that on the application of a disqualified person, the Tribunal may make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.
Section 28 (7) of the Act provides that 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. In other words, the onus is on the applicant to rebut this presumption for an enabling order to be made.
The Tribunal's jurisdiction under section 28 of the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. The object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risk to children.
In displacing the presumption of risk to the safety of children, Beech-Jones J in BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 cited Cooper JA who stated in The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83] to [84] as follows: It should also be noted that in paragraph 6 of the judgment the Tribunal clearly and correctly stated that the Applicant carried the onus on the Briginshaw standard to establish that he is not a risk to children. This does not mean that in respect of each individual piece of evidence considered by the Tribunal it has to be satisfied to that extent. What it does mean is that at the end of the deliberations after having considered the totality of the evidence the Applicant has satisfied the Tribunal to the appropriate standard that he is not a risk to children.
His Honour Beech Jones J expressed some misgivings in relation to reference to the Briginshaw standard [at 29] with respect to disproving a negative assessment of the risk an applicant may pose to children in the future, particularly in the context of administrative review by a body that is not required to apply the rules of evidence (as is the case in this Tribunal). However it is clear that the test for this Tribunal is whether the applicant has met the appropriate standard that he is not a risk to the safety of children.
The word "risk" in the Act is construed to mean a risk that is "real and appreciable". In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word "risk" in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW): What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater that the risk of any adult preying on children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of children': at [42]
Section 28 (6) of the Act provides that if the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant a person a clearance.
Section 12 of the Act specifies the class of clearances which authorises workers to engage in paid and unpaid child-related work, namely volunteers and non-volunteers.
Section 28(8) of the Act provides that an enabling order may not be made subject to conditions.
Section 27 (4) of the Act provides that an applicant must fully disclose to the Tribunal any matters relevant to the application.
Section 30 (1) of the Act provides the factors that the Tribunal must consider in determining an application under Part 4 of the Act (in this case an application for an enabling order and an order that the Children's Guardian grant the person a clearance). 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.

BPQ v Children's Guardian

At a glance

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Decision date

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Judgment (6 paragraphs)

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Legislation Cited (3)

Cases Cited (4)