BPX v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-03-30

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] NSWIRComm 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 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BPX (Applicant) Children's Guardian (Respondent) Representation: Counsel: P Ginters (Respondent) Solicitors: NSW Crown Solicitor (Respondent) File Number(s): 1410706 Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any victims, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons.

The evidence relied upon in the hearing

The applicant relied upon the following documentary material: 1. Documents filed on behalf of the applicant on 18 December 2014 for the stay application - Exhibit A1; 2. Affidavit of the applicant filed 26 March 2015 - Exhibit A2;
The respondent relied upon the following documentary material: 1. COPS events 14 November 2008, 16 June 2010, 19 June 2010, facts sheet, Statement by a co-worker of the applicant, Investigation Findings July 2010 of the applicant's employer, filed on the stay application - Exhibit R1; 2. Volume 1 filed 13 January 2015 - Exhibit R2; 3. Volume 2 filed 13 January 2015 - Exhibit R3; 4. Volume 3 filed 9 March 2015- Exhibit R4; 5. Outline of Submissions on Behalf of the Children's Guardian-Exhibit R5.
The applicant gave oral evidence and was cross-examined on 30 March 2015.
An Annexure to the applicant's affidavit is a letter from the Commissioner for the Commission for Children and Young People dated 23 March 2012 in which it is said: "The estimate of risk we conducted, taking into account the additional information, showed that there was no particular risk relating to your personal history."
The applicant places weight upon that determination. The applicant obviously considers that the Tribunal should also place some weight on the determination. That determination was made in the context of the repealed legislation. The precise information before the Commissioner is not identified, but it is presumed that much of the same information was before the Commissioner as the information which is placed before this Tribunal: Exhibits R2, R3, R4. The material contained in Exhibit R2 refers to the previous risk assessment in 2011 which was initially assessed as significant risk. The applicant provided further information and additional references and the final outcome was no greater than average risk. It is explained in the Children's Guardian assessment of risk that additional information, not available in the previous risk assessment, was utilised in assessing the risk posed by the applicant. Some limited submissions were directed to the weight which the Tribunal should place on that assessment of risk, for example, the applicant has repeatedly referred to the fact that he received that clearance which then enabled him to continue to work in the disability sector. It is presumed that the applicant emphasises that fact before this Tribunal as a factor which he may believe is more or less determinative of the current application in his favour. It is clear from the material from the Children's Guardian that this current assessment is based on information not available at the previous assessment. In any event, the Tribunal assesses the matter on the basis of the information before the Tribunal.
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 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 decision in BJB v NSW Office of the Children's Guardian (No 2) and the paragraph quoted from that decision is a considered statement 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 presently constituted Tribunal and are not currently controversial. Mr Ginters made submissions referring to the principles and decisions which are applicable. The applicant had the opportunity to respond to those submissions. The applicable provisions are referred to now so that the legislative basis of this decision is identified for the parties.
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 matter referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian is the matter referred to in clause 1(b) which is as follows: "(1) Proceedings have been commenced against a person: (a) for an offence specified in clause 1 of Schedule 2, if the offence was committed as a child (whatever the outcome of the proceedings), or (b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person."
The offences with which the applicant was charged are contained within clause 1 of Schedule 2 of the Act.
The outcome of the investigation by the applicant's then employer was that the applicant was considered to have a sufficient criminal case to answer to warrant his termination. The letter from the applicant's employer dated 2 July 2010 terminated his employment based on serious misconduct and purported to apply the balance of probabilities formulation to the evidence: Exhibit A2, Annexure 3.
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 to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is guided by the recent 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]. It is useful to set out the reasoning behind the Tribunal's determination in this decision.
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 register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
In the following paragraph the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.
In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states: "Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."
If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 provide that persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. The applicant is not treated as a disqualified person, but is subject to risk assessment under the current Act due to the provisions of schedule 1. It is the Tribunal's assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

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.
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. It may not be necessary in this matter to decide whether these aspects are part of the Tribunal's functions and powers.

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.
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 will be 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 within the required considerations under the 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

On 30 June 2010 the applicant was arrested by NSW police who conducted a record of interview and the applicant consented to DNA testing. The applicant was given the opportunity to make any comments upon the allegations, but essentially declined to do so in accordance with his legal rights. The applicant was formally charged and granted bail.
The applicant's trial occurred in the District Court of NSW and on 24 August 2011 the applicant was found not guilty by the jury empanelled to hear the matter, in relation to the charges laid against him.
The applicant has denied the allegations that were made against him and, as referred to in the previous paragraph, he was found not guilty by a jury and discharged.
It is important to point out that even if no criminal charges were established and guilt was not found, the allegation may nevertheless be found to be sustained on the civil standard. This civil standard is the one the applicant's employer purported to apply to a consideration of the evidence before it. The evidence contained in Exhibit R3, is that the Employment Separation Certificate provided by the applicant's employer records that he was dismissed for "Misconduct as an employee" and the further reason given was "Inappropriate behaviour with a service user." This document was signed on 15 July 2010.
The applicant was therefore terminated from his employment for misconduct and his inappropriate behaviour with a "service user" who was the victim in the matter.
The applicant was alleged to have behaved inappropriately with a 33-year-old woman who suffers from intellectual disability and cerebral palsy. The applicant was a respite carer employed in a facility where the victim resided. On 16 June 2010 the victim was collected from her work in a vehicle driven by the applicant. It was alleged that the applicant was very excited to see the victim and gave her a kiss on the cheek before she got into the vehicle. On the way back to the house the applicant stopped the vehicle at a set of traffic lights. The applicant is alleged to have reached his hand around while the vehicle was stopped and rubbed the victim on the leg. The victim told him to stop and he is said to have complied.
At about 8:30 in the evening of the same day when the other carers had gone home after their shift, it is alleged that the applicant asked the victim to give him a facial massage which she did. Then it is alleged the applicant and the victim went to her bedroom where ultimately they both were naked. The applicant is alleged to have requested the victim to touch him on the penis and guided her hand with his. Then it is alleged that the applicant lay on top of the victim on her bed and made moaning and groaning noises. The victim told the applicant to stop and he did. They both got dressed and returned to the lounge room where the applicant used his mobile phone. The following day the victim described the incident to another respite carer. As a consequence the victim was taken to hospital for medical treatment and assessment and then to the police station, to make a statement which was audio and video recorded.
The applicant was charged with aggravated indecent and sexual assault offences, and aggravated act of indecency under sections 61J(1) 61O(1A) and 61M(1) of the Crimes Act 1900 (NSW). The circumstances of aggravation are provided in the relevant sections as follows: "(b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has a cognitive impairment."
In summary, the matter that caused a refusal of a clearance is very serious. The offences with which the applicant was charged have been prescribed by the legislature as sufficiently concerning to trigger an assessment of risk under the Act. Although the offences with which the applicant was charged do not relate to a child, the circumstances of aggravation are equally applicable to many children in the care of an adult because they are generally under the authority of an adult, are less physically able than an adult, and generally less cognitively able than an adult. The parallel between the victim in this matter and children is not tenuous. If the applicant behaved inappropriately with the victim in this matter it is not a great leap of logic to conclude that he may be a real and appreciable risk to children in a similar situation of authority by him, and dependence by them.
The applicant was also the subject of an incident report on 14 November 2008. This concerned a female child aged 13 years who was not wearing her school uniform, but walking along the road towards the bus stop to catch a bus to school. This was her normal route. The applicant drove alongside the schoolgirl in his motor-vehicle turned around when he had passed her and spoke to through the passenger's open window. The applicant asked: "Would you like a lift?" The child replied "No". She continued to walk away from the applicant. The schoolgirl noticed the applicant then turn into a driveway in the road. At school the girl notified the school principal who in turn notified the police. The police made some enquiries and noticed the applicant's car parked in the driveway. The applicant informed the police that he asked the girl whether she required a lift. The applicant said that he was unaware that his kind gesture may suggest something of a more serious nature. The applicant said that he had no bad intentions for the girl. The police warned the applicant that such behaviour may be construed differently by members of the public and that his actions were not appropriate in the circumstances.
The applicant has responded to these allegations during the course of the risk assessment by the Children's Guardian and in his affidavit, Exhibit A2. The applicant was cross-examined about these matters in the hearing.
In relation to the incident in 2008 it was submitted by the respondent that the applicant lacks insight into the inappropriateness of his interactions with people who are vulnerable, or children.
The applicant stated in his affidavit that the schoolgirl was not wearing her school uniform, which is information contained in the police material. The applicant says he merely offered assistance to a person he thought may need some help. In cross examination he said he didn't see anything wrong with his actions. It is not known why he made this offer when he was just about to park at his employment.
The applicant responds to the incident which occurred in the car in some detail. The applicant refers to this as the "car event" in his statutory declaration and affidavit. The applicant states that he stopped at a petrol station to buy a bottle of juice which he then commenced to drink while he was driving. The orange coloured lid moved from the armrest storage compartment towards the victim's feet. When the car stopped at a red light the applicant picked up the lid from the car floor near the victim's feet. The applicant says he did not touch her leg nor did he say anything to her. It was necessary to reach around the back of the seat he was in to do this and the victim was seated in the rear seat.
The other passenger in the car confirmed that he was touching the victim's leg. In response to this the applicant states that she could not have seen him touching the victim's leg from her position in the car because she was seated in the front passenger seat. The Children's Guardian considered the information from the victim and the passenger contradicted the applicant's denial of any deliberate touching. In those circumstances, it is open to find that the incident described by the victim is more likely than not to have occurred. This conclusion appears to be a correct application of the civil onus. The Tribunal considers this conclusion be correct.
In relation to the allegations concerning the matters which led to criminal charges the applicant refers to that as "The living room event" in his statutory declaration and affidavit.
In his affidavit Exhibit A2 at [63], the applicant states: "I stand by my version of that event and reject the suggestion that I asked or allowed the complainant to massage my head or face."
The victim and a witness state that the applicant asked the victim to massage his head and neck. The victim spoke with the CEO of the respite facility who recorded that the victim said, as contained in Exhibit R2: "He wanted me to sit on the corner of the lounge and sometimes [other staff member] lets me massage her shoulders. [The applicant] laid on my lap and said massage my face. I did. I felt okay with this…"
The applicant had no comment to make when asked by the police about this issue. When asked: "What can you tell me about this massage", he replied: "Nothing. Nothing happened really. Exactly."
During the 2012 risk assessment the applicant wrote to the Commissioner. In the correspondence it is stated: "I must tell you that this was her usual behaviour and I never told her to massage my head. She does it with several other staff members and they have agreed to it. In fact she has done it twice with me and I have mentioned it in two of her shift reports. These handwritten reports were subpoenaed in court. I did which was professionally accurate to record it in her shift reports that she was getting closer to me. Me being very new to the organisation, mentioned to many staff members of the organisation about this particular client that she keep following me. Several staff members advised me that it was not unusual for her to do that. Specially with young boys… They also added that may be it was because I was the only male staff member working in that unit. All other staff were females. They made a joke out of it, however it was true."(sic)
The applicant also wrote that the complainant victim had put her hand on his hair while she was watching TV. He also said that he did not particularly like this because "I know the residents are not sometimes great at washing their hands after they go to the toilet." The applicant did not ask her to stop what she was doing. The applicant says that he went to work in the kitchen after this.
The applicant also said that the victim "…calls herself a party girl and has a history of liking young boys. She use to follow me everywhere I would go during my shifts…" (sic).
The applicant was married on 19 September 2010 in another country. The applicant states that after his marriage he was treated for a condition called Phimosis and underwent an operation in October 2010. It is apparent that this condition can be painful and makes sexual activity less enjoyable. The applicant obliquely casts doubt by reference to this condition, and that the allegation made by the victim is somehow less probable because he had this condition. This assertion is unsupported by other evidence that explicitly supports a conclusion which would further assist the applicant.
There were two phone calls which the applicant says occurred at about the time of the alleged incident. There was apparently a short telephone call with a colleague of the applicant which he says occurred in the kitchen. The applicant then about 10 minutes later telephoned the woman who is now his wife and that call he says lasted approximately 1 hour and 24 minutes. The applicant says he was walking around checking on the residents while he was talking on the phone to his future wife. While he was talking to his future wife the applicant says he observed the victim come out of another resident's bedroom. He had not seen her go in to the person's room and while he was still on the phone, he asked what she was doing in the other room, to which she responded that she was having a chat. The incident is alleged to have occurred prior to these phone calls.
It is recorded in the police narrative that the massage occurred at approximately 8:30 pm. This is said to have lasted approximately 15 minutes. It is alleged that the applicant then went with the victim to her bedroom. It is alleged that after the alleged sexual assault the victim went to the other resident's bedroom to see what she was doing. The victim then alleges that the applicant asked her what she was doing in the bedroom when she came out of that resident's bedroom to go back to her own bedroom. The victim says that the applicant was then talking to somebody on the lounge on his mobile phone.
The applicant arrived the next day for a shift which he had swapped with some other employee. The Tribunal does not consider that this occurrence is relevant to an assessment of whether the incident occurred.
The applicant's employer, when considering the allegations, came to the conclusion set out previously in these reasons. The employer considered that the victim was consistent in her statements to staff, managers, family, hospital staff and the police. It was the applicant's view that the victim changed her story during the course of the investigation because an act of actual intercourse was later asserted. Despite this alleged inconsistency the matter went to trial. The victim was able to relate the detail of the events with clarity. The victim made it clear what action she wanted to be taken. The applicant was the only staff member present at the time of the allegations. The victim sustained physical bruising. The victim had not previously made allegations of this nature. The victim had not been known to previously lie. The other person present in the respite facility separately notified a staff member of inappropriate behaviour that the applicant showed to the victim on that day. Additionally, the employer considered that the police charged the applicant because there was sufficient evidence to bring criminal charges. These factors are reasonable matters to take into account in determining whether the event occurred. The conclusion of the employer is one which was reasonable in the circumstances.
The medical examination which was undertaken of the victim identified that the front of the victim's legs indicated bruising and the labia majora had two superficial scratches as a result of the victim scratching herself. The conclusion of the medical examination was that the history of sexual assault can neither be proven nor disproven by the examination alone. The applicant's DNA was not found.
It is also recorded in the records of the employer that the victim made an allegation against the applicant which was to the effect that he grabbed her by the waist in the same room at the respite home some months previously but she did not report it at the time. The employer ascertained that the applicant and the victim were both present together at the time the victim alleged this incident occurred. This allegation did not come to light until after the medical examination of the victim. This allegation apparently did not form part of the employers' determination concerning the later event.
The Children's Guardian assessment placed some weight on the employer's determination that the applicant posed a risk of harm to the respite users. The victim was in a highly vulnerable position arising from her disability and the respite home was there to provide her support and protection.
The matter which led to the refusal of a clearance is a serious matter. There is a history of one additional matter of inappropriate behaviour with a child which adds some further weight to the seriousness with which the applicant's conduct is considered.
The events on 16 June 2010 as alleged by the victim are partially corroborated by both the applicant and the other resident who was in the respite home. There are some inconsistencies revealed in the assertion by the applicant to the police that nothing occurred in relation to the alleged massage, the victim's statement is corroborated by the other respite user, and the applicant's own statements in correspondence are not consistent with this position.
The evidence which is of significance in assessing whether the incident occurred is set out in the previous paragraphs under this heading.
The timing of the telephone calls correspond with both parties' version of events.
The applicant's medical condition did not prevent the applicant from behaving as was alleged.
The allegation concerning the applicant touching the victim's leg in the car is corroborated by the other respite user and the applicant's version of events is partially corroborative.
The victim, despite her disability, was considered credible by those who knew her.
The account given by the victim has sufficient detail, which is corroborated, to give it significant weight.
On the balance of probabilities, and having regard to the seriousness of the allegations, the Tribunal finds and is comfortably satisfied that it is more likely than not that the events in the allegations made against the applicant occurred.

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

There is no index offence. The applicant has not been convicted of any criminal offence arising from his conduct in the matter which triggered the assessment. The conduct occurred in 2010.
The letter from the Commissioner for the Commission for Children and Young People dated 23 March 2012 stated: "The estimate of risk we conducted, taking into account the additional information, showed that there was no particular risk relating to your personal history."
As previously stated, the previous risk assessment in 2011 was initially assessed as significant risk. The applicant provided further information and additional references and the final outcome was no greater than average risk. It is explained in the Children's Guardian assessment of risk that additional information, not available in the previous risk assessment, was utilised in assessing the current risk posed by the applicant.
There has been a passage of over four years since the matter which triggered the risk assessment under the Act.
The matter involving the school girl occurred on 14 November 2008.
The applicant has not had any other matters of inappropriate conduct raised against him since those two matters referred to previously under this heading.

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

The applicant was born in December 1984.
The applicant was therefore aged 24 at the time of the school girl matter in 2008.
The applicant was aged 25 at the time of the respite home matter for which he was charged and subsequently acquitted.

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 of the respite home matter was aged 33.
The complaint occurred when the victim was a vulnerable person. Her vulnerability was heightened because of the relationship between the applicant and the victim, and the position held by the applicant. There was an inequality of position and power between the applicant and his victim. The consequences upon her vulnerability are that she may not trust those people who provide care for her in the future and her feeling of security has been diminished.

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

There was a significant difference in age between the applicant and the schoolgirl of 11 years. There was no relationship between the applicant and this child.
The victim in the respite care facility was eight years older than the applicant. However, the applicant was responsible for transporting the victim safely and without harassment to the respite home and providing protective care for her while she was there. The Tribunal has found that the applicant behaved inappropriately and contrary to his responsibilities to the victim. The applicant's employer formed a similar conclusion.
The applicant made comments in his statutory declaration and correspondence which were disparaging of the victim's reputation and behaviour in an unsuccessful attempt to distract attention from his actions.

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

The applicant's victim at the respite care facility in 2010 was not a child and the applicant knew that she was not a child. However, the victim's disabilities rendered her vulnerable and in need of protection. The position of the victim is not dissimilar to that of a dependent child.
The school girl matter which occurred in 2008 recites that she was aged 13 at the time. The applicant knew that she was a schoolgirl and a child despite the fact that she was not wearing a school uniform.

The Person's present age

The applicant is currently aged 30.

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 was granted bail which allowed him to travel overseas to marry his current wife. The applicant subsequently returned to Australia to face his criminal charges. The applicant was acquitted by the jury.

Likelihood of any repetition by the person of the conduct and the impact on children of any such repetition

The applicant seeks that the Tribunal place weight upon the granting of a clearance under the repealed legislation to assess the likelihood of a repetition of the events which lead to the charges against him and dismissal from his prior employment.
The applicant was acquitted of the criminal matters and points to that occurrence as a factor which the Tribunal should rely upon to assess the likelihood of repetition of any inappropriate behaviour.
The applicant has not relied upon any psychological or psychiatric assessments which may have assisted an assessment of the likelihood of any repetition of his conduct.
It is apparent that the behaviour engaged in by the applicant was beyond reasonable community norms. The behaviour appears part of a pattern of inappropriate behaviour towards persons in a vulnerable position. The effect upon a child of a repetition of that behaviour would be detrimental to their physical and psychological health.
Until there is an acknowledgement of the extent of the past abusive behaviour and sustained positive effort to address that behaviour, it is the assessment of the Tribunal that the likelihood of a repetition of that behaviour remains significant: cf. T v H and Ors [1985] NSWSC, Unreported 19/12/1985; SS v Department of Human Services (NSW) [2010] NSWDC 279 at [111]-[114].

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

The applicant has maintained a position of denial of the serious matters raised against him.
There has been a significant amount of information provided to the Tribunal on behalf of the respondent. The applicant has provided the information which has been referred to previously in this decision. There is no suggestion that the applicant has failed to provide information which is in his possession relevant to this application.
The applicant acknowledges he has been placed in situations where trust is an expected aspect of his conduct.
The applicant has referred to his extensive experience and qualifications which is supported by the documents upon which he relies. Apart from these allegations it would appear from the material provided by the applicant that he is a diligent and competent employee. The applicant and his wife have a young child.

Any other matters that the Children's Guardian considers necessary

There was extensive material filed on behalf Children's Guardian and it would appear there are no other matters which the Children's Guardian considers necessary.

Determination and conclusion

The applicant's conduct affected a vulnerable person and was serious. There is another matter which is also serious and concerns the appropriateness of the applicant's behaviour towards a child in 2008.
For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children. The behaviour in the past occurred in circumstances where the applicant was held in a position of trust. The applicant has abused that position of trust.
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, as previously described in this decision. Even if conditions were imposed there is no guarantee that they would mitigate the risks posed by the applicant.
The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a real and appreciable 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.
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 is upheld.
The order of the Tribunal therefore is: 1. The decision of the Children's Guardian dated 5 December 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 11 December 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: 09 June 2015

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Judgment (18 paragraphs)

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Legislation Cited (7)

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Cited By (11)