BRG v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-08-24

Introduction

The applicant, BRG, is a "disqualified" person under subs 18(1) of the Child Protection (Working with Children) Act 2012 (the WWC Act) and he has made an application for an order under subs 28(1) of that Act. The order is known as an "enabling order" and if made has the effect of granting the applicant with a clearance to work in child-related work as defined in the WWC Act.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), prohibiting the publication and broadcasting of the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child without the leave of the Tribunal. For this purpose the pseudonym BRG has been used for the applicant's name.
The applicant is a "disqualified person" by reason of having been found guilty, in July 2008, of an offence under s 66C(3) of the Crimes Act 1900 (NSW) (sexual intercourse - child between 14 and 16). The Court did not convict the applicant and made an order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 discharging the applicant on the condition he enter a two year good behaviour bond. The applicant was 18 years of age at the time of the offending conduct and the victim was 14½ years of age.
The word "conviction" is defined in s 5(1) of the Act to include a finding that a person is guilty of an offence, even though the court does not proceed to conviction. Offences that are "disqualifying offences" are listed in schedule 2 of the Act. Included in the list is the offence under s 66C of the Crimes Act 1900: see the Act, schedule 2, cl 1(1)(h).
The applicant wishes to become a paramedic and made an application to the respondent, under s 13 of the WWC Act, for a working with children check clearance. On 17 January 2014, the respondent refused his application, as she was required to do under s 18(1) of the WWC Act because of his disqualifying offence.

Extension of time

The applicant did not make his application for an enabling order until one year later, on 10 February 2015. In his application to the Tribunal, the applicant explained why he had delayed in bringing his application.
Rule 23(3) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) provides that unless the Tribunal grants an extension of time under s 41 of the NCAT, a general application must be made within the time prescribed in the enabling legislation and if not prescribed, within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. Section 28 of the WWC Act does not prescribe a time within which an application for an enabling order is to be made, the time period prescribed under the NCAT Rules apply, unless an extension of time is grant.
If time is not extended, the applicant's ability to make a further application for a clearance within five years is limited: WWC Act, s 21. I am satisfied the applicant has given a satisfactory explanation for the delay in bringing his application and I note the respondent has not objected to time being extended. Accordingly, I consider it appropriate to extend the time within which the applicant can bring this application to the day on which it was filed (10 February 2015) and I make the order accordingly.

The hearing

The applicant's application was heard on 24 August 2015. The applicant's application was to be heard in regional New South Wales where the applicant and his solicitor reside. Due to flight difficulties on the day of hearing, with the consent of the respondent, the application was heard in Sydney and the applicant, his expert witness and the applicant's solicitor appeared by telephone.
At the conclusion of the hearing I reserved my decision. I have now considered all the material that was before me and for the reasons set out below I am satisfied the appellant has discharged his onus to rebut the presumption that he poses a risk to the safety of children.

Evidence

In support of his application the applicant tendered into evidence an affidavit sworn by him, on 27 April 2015, and an undated report of Mr Matt Jones, a provisional psychologist that was filed, on 31 July 2015. The applicant and Mr Jones both gave oral evidence and were cross-examined by counsel for the respondent.
The respondent relied on three bundles of documents. The first and largest bundle of documents (73 pages) contained copies of the respondent's notice of disqualification, the applicant's application to the Tribunal, correspondence between the respondent and the applicant's solicitor and copies of responses the respondent had received following her enquiries NSW Police Service, the Local Court, Corrective services, the Department of Education (Employee Performance and Conduct Directorate and the Probity Unit) and the applicant's current employer.
The second bundle of documents consisted of a one page short response from the applicant's previous employer. The third bundle of documents are copies of documents produced by Mr Jones, pursuant to a summons issued by the Tribunal, at the request of the respondent.

The relevant provisions of Child Protection (Working with Children) Act

The objects of the WWC Act are: "3 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."
Section 4 of the WWC Act provides that the paramount consideration in the operation of the Act is the "safety, welfare and well-being of children and, in particular, protecting them from child abuse."
The word "children" is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word "child"' has the same meaning.
Subsection 8(1) of the WWC Act prohibits a person from engaging in "child-related work", unless: (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in "child related work" where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
The term "child-relate work" is defined in section 6 of the WWC Act. It includes child health services such as ambulance services: WWC Act, s 6(2)(c) and Child Protection (Working with Children) Regulation 2013, cl 6(5)(e). Notwithstanding the applicant's desire to only work for the ambulance service, the Tribunal is required to consider his application in the context of the very broad characterisation of child-related work in s 6 of the Act: BKE v Children's Guardian [2015] NSWSC 523, at [27].
As noted above, subsection 18(1) of the WWC Act provides that the respondent must refuse an application for a clearance where the applicant is a disqualified person by reason of having been "convicted" of an offence falling within schedule 2 of that Act. As I have already noted the word convicted is broadly defined in s 5(1) of the WWC Act to include a finding of guilt without proceeding to conviction.
Section 22 of the WWC Act provides that a working with children check clearance check ceases to have effect five years after it was granted, unless it is cancelled or suspended prior to that time: see the WWC Act, ss 23 and 24.
Again, as noted above, subsection 28(1) of the WWC Act makes provision for a "disqualified person" to make an application to the Tribunal for an enabling order.
Where an application is made under subsection 28(1), that section also provides as follows: "28 Orders relating to disqualified and ineligible persons (1) … … (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to … grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) …"
The meaning of the word "risk" was considered by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word "risk" as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.""
These remarks have been accepted to equally apply to the word "risk" as it appears in the current Act: see AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE), at [26]
Section 30 sets out the matters the Tribunal is required to consider in determining an application for an enabling order. That section is in the following terms: "30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary."

Consideration and findings in regard to the subs 30(1) factors

The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children by persons working in child-related work

S 30(1)(a) the seriousness of the offence with respect to which the applicant is a disqualified person

In regard to the applicant's disqualifying offence, the Police Fact Sheet states that in May 2008, the victim attended the local police station with her mother and made a report of having been sexually assaulted by the applicant in March of that year.
The victim alleged that the applicant had arranged to pick her up from her home. He picked her up as arranged and the applicant drove her to a secluded area. After parking his car, the applicant and the victim commenced kissing. The victim alleged that the applicant then commenced touching her breasts and thighs. The victim alleged that the applicant had penile/vaginal intercourse with her. She said that she did not speak at all during the incident because she was scared. She said that after the incident the applicant had driven her home.
The victim and the applicant had started communicating over the internet, via MSN Messenger, in November 2007. They were previously unknown to each other. At the hearing, the applicant explained that the victim had contacted him through mutual friends on MSN Messenger.
On the same day as the victim reported the matter to police, the applicant attended the local police station as police had also sought and obtained a Provisional Apprehended Violence Order on that day. Whilst speaking to police the applicant made full admission to having sex with the victim and agreed to participate in an electronically recorded interview. The applicant made full admissions to having sexual intercourse with the victim. However, he said it was consensual. He admitted to picking the victim up three days earlier in March 2008 and going for a drive and parking at the local lookout. The applicant said they "kissed and made out" during this time, but there was no sexual intercourse. The applicant also admitted to picking up the victim on the day in question and driving her to a secluded area where they had sexual intercourse. He again said he was under the impression that the sex was consensual. He said he thought the victim was 15 or 16 years of age. The applicant informed police he had saved all MSN Messenger communications with the victim and supplied a copy to police. Police found that there were a total of 817 pages of conversation between the applicant and the victim. These messages accorded with what the applicant had told police.
The Police Fact Sheet states police interviewed the victim one week later. During this interview, the victim again said she had only met the applicant once. However, after police told her that the MSN Messenger conversations indicated otherwise, the victim said she was scared of what other people would think of her. The Police fact Sheet states the victim admitted to having met the applicant once previously where they had only kissed. She also admitted sexual intercourse had taken place in the afternoon after her guitar lessons and she had not reported it earlier as she was concerned about what other people would think of her. The Police Fact Sheet goes on to say that "the conversations over MSN at the time before and directly after …. March 2008 indicate that the sex was consensual."
The Police Facts Sheet states that the applicant had co-operated fully with police throughout the investigation of the matter. He had made full admissions at the first opportunity and had shown remorse for his actions.
In the pre-sentence report, the probation and parole officer said the applicant "exhibited what appeared to be genuine empathy for the victim expressing concern for her wellbeing and the state of her current mental health", did not attempt to excuse or trivialise his behaviour and appeared to accept responsibility for the offence.
During his oral evidence the applicant agreed that what he had done was wrong. He said that once he had been told by police that the victim was 14 he knew he had done the wrong thing. He said he took full responsibility of what had happened and he accepted that the victim was in a position of vulnerability given her age. He said he regrets it happened and was concerned he had put the victim in a position that caused her harm. He said that he was worried that he had forced himself on her and thought he had broken her trust.
The offence carries a maximum penalty of 10 years imprisonment. While it is a serious offence, having regard to facts as recorded in the Police fact Sheet and the sentence imposed on the applicant it was clearly at the low end of the scale of seriousness for such offences.

S 30(1)(b) the period of time since the disqualifying offence and the conduct of the applicant since they occurred

It is 7 years since the applicant committed the disqualifying offence. At the time he committed the offence he was an apprentice electrician. He was made redundant after 18 months and then commenced working at an engineering company. He completed his apprenticeship in January 2010 and then commenced working in the mining and construction industry. He worked there for 2 years and then returned to his home town to work for a private electrical contractor. He worked for two different contractors and in December 2014 he returned to the mining industry where he has continued to work as at the time of the hearing.
There are no further reports of the applicant having engaged in conduct of a similar kind to his 2008 offending.
However, in November 2008, at the request of the principal of the local primary school, the applicant assisted, as a swimming instructor, in learn to swim classes for children in Year 2 and Year 3. When requesting the applicant to assist, the principal provided the applicant with the relevant application forms including a prohibited employment declaration form and a consent to employment screening. The forms were completed and sent to the Department of Education on the day after the applicant commenced his swimming instructions. He was an instructor for two weeks and in January 2009 he was informed that he had made a false declaration in his working with children check. He had made a false declaration as he had failed to disclose his July 2008 offence. Shortly after being informed of the false declaration, the applicant voluntarily attended the local police station where he made full admissions to having signed the prohibited employment declaration form and failing to disclose his offending conduct. The applicant is recorded as having said he was not aware that he was a prohibited person, as he had not been placed on the Children Protection Register and therefore believed he was free to apply for the position. He also said he had sought advice from his solicitor who informed him that because he had not been convicted of the offence he could apply for the position. The applicant was nevertheless charged. However, those charges were withdrawn.
Attached to the applicant's affidavit was an affidavit of his solicitor, Mr Wes Burton, sworn on 7 April 2009. In that affidavit Mr Burton explained he was the applicant's solicitor in the proceedings before the Court in relation to the false declaration charges. Mr Burton also explained he represented the applicant in the 2008 criminal proceedings. Mr Burton said he recollected the applicant having contacted him on at least two occasions, in May 2008, in relation to job applications. He said he recollected the applicant asking him whether he was required to disclose the charge for which he was convicted in 2008. The solicitor said he recollected advising the applicant he would have to disclose he was charged with a criminal offence. He also said he recollected advising the applicant about the difference between being charged and being convicted. He said he explained to the applicant that he had not been convicted and would not have to disclose the relevant offence if all they asked was whether he had been convicted of the offence. Mr Burton went on to say he recalled that on a separate occasion he had discussed with the applicant another job application. On this occasion the applicant had asked the question as to whether he had been convicted of a criminal offence. Mr Burton said he explained to the applicant that he could truthfully answer that question "No". He said he explained to the applicant that a "section 10" meant that although he had been charged with an offence and had pleaded guilty to it no conviction was recorded against his name.
Mr Burton was not required for cross examination by the respondent. Accordingly, I have accepted his affidavit evidence. While the applicant should have understood he was required to disclose his offending conduct and waited for a clearance before he commenced the child related work, I accept he was unsure of this at the time and made a genuine attempt to ascertain what the position was in respect of his offending conduct. Given this experience, I doubt he will be unsure of his position again.
Otherwise, the applicant has no further records of having been charged with an offence or having any adverse findings made against him since the 2008 charge.

S 30(1)(c) the age of the applicant at the time the disqualifying offence occurred

The applicant was 18 years of age at the time of the disqualifying offence.

S 30(1)(d) the age of the victim at the time of the disqualifying offence and any matters relating to the vulnerability of the victim

The victim was 14½ years of age at the time of the disqualifying offence. Other than her age, there was no evidence of any further vulnerability of the victim.

S 30(1)(e) the difference in age between the victim and the applicant and the relationship (if any) between them

There was about 3½ years difference in age between the applicant and the victim.

S 30(1)(f) whether the person knew, or could reasonably have known that the victim was a child

In his record of interview with police the applicant said that he did not know the age of the victim, but thought she was between 15 and 16 years of age.
In his oral evidence, the applicant acknowledged that he had failed to make sufficient enquiries about the victim's age at the time he was messaging her. As I have explained, the applicant said the victim had added him as a friend in MSN Messenger. He said they had mutual friends and this is how she had joined him as her friend. He said that he no longer uses the same MSN Messenger in that he has activated his privacy settings to ensure that he only communicates with those whom he knows and are his friends.

S 30(1)(g) the applicant's present age

The applicant is now 26 years of age.

S 30(1)(h) the seriousness of the applicant's total criminal record and the conduct of the person since the offence occurred

As I have explained the applicant has only had two criminal charges laid against him. The first being the section 66C(3) offence of which he was found guilty and the false declaration charge which was dismissed.

S 30(1)(i) the likelihood of any repetition by the applicant of the offence or conduct and the impact on children of any such repetition

As I have noted, the applicant relied on a report by Mr Matt Jones, a provisional psychologist which was prepared for the purpose of this application. Mr Jones' report was countersigned by his supervisor, Ms Dominique de St Croix, registered psychologist.
Mr Jones' assessment was based on a clinical interview with the applicant together with a Personality Assessment (PAI-2), STATIC-99 Risk Assessment and Sex Offender Need Assessment Rating (SONAR).
In regard to the STATIC-99 Risk Assessment, Mr Jones placed the applicant in the moderate-low risk category, but went on to say he was of the view that this score over-represented the applicant's risk. He said, as the applicant had not committed a new offence in the time since his conviction this would reduce his risk of re-offending.
Mr Jones said that the applicant's results arising from the SONAR Actuarial Instrument identified him as being at low risk of re-offending. He said that based on a semi-structural clinical interview, the result reflected an assessment of stable risk factors that included intimacy deficits, positive social influences, sexual self-regulation, attitudes and general self-regulation as well as acute risk aspects including substance abuse, negative mood, anger/hostility and opportunities for access. Mr Jones said the results were reinforced by the lack of offending behaviour from the applicant.
In his report, Mr Jones listed a number of factors suggesting the applicant was of good character and sound judgment. Mr Jones concluded by recommending, in light of his overall assessment and the police and Court documents, it seemed reasonable to conclude that the applicant's application for an approved working with children check clearance be considered.
In cross examination Mr Jones agreed the applicant's explanation that he had been misled as to the victim's real age was a poor use of words. He agreed a person who maintained a position of ignorance as to the victim's age would go to the person's insight into his/her offending conduct. He also said the applicant had explained that he felt "duped" by what had happened. Mr Jones explained the applicant had used these words in the context of having assumed that the girl was of age and it was not a calculated decision not to enquire into her age. Mr Jones also agreed that he had used cautious language in his recommendations because it is not possible to rule out that it would not occur again. I understood Mr Jones to have made this remark in a more general sense and not so as to depart from his assessment of the applicant being at a low risk of re-offending.
In re-examination, Mr Jones agreed he had allowed the applicant to talk about the offence in an open and uncontrolled manner. He also explained that, other than the period since the offence had occurred, no adjustments were technically available for the STATIC-99 and SONAR Assessments. He also explained that the STATIC-99 and SONAR Assessments do not distinguish between violent and non-violent sexual offending.
In his evidence the applicant said that the word "duped" was not a word he uses or had used. He said he did not blame the victim and reiterated he took full responsibility for what had happened.
In my view, having regard to all the evidence, the likelihood of the applicant reoffending is low. The Police Fact Sheet does not suggest the applicant felt misled as to the victim's age. On the contrary, it is stated he thought she was 15 or 16 years of age. In his oral evidence the applicant said he did not ask the victim her age and accepts he should have done so. I am also satisfied that the applicant's expression of concern for the victim were genuine. As I have noted he has at all times demonstrated remorse.

S 30(1)(j) any information given by the applicant in, or in relation to, the application.

As I have noted the applicant is seeking a working with children check clearance as he wishes to study to be a paramedic. This is a 3 year course and he needs to have the clearance in order to undertake it. He states that he has worked hard and continues to be involved in his sport and as a member of the local pipe band.

S 30(1)(k) any other matters that the respondent considers necessary

It is the respondent's contention that the applicant has limited insight into his offending conduct. In this regard the respondent noted the applicant had undergone no counselling. Also of concern to the respondent was the applicant's claim to Mr Jones that he had been misled as to the victim's real age and also claiming to be ignorant of her age at the time. Furthermore, the respondent contends that the applicant having said that he felt sorry for others for whom he felt had been "duped" as he had is of concern. It is contended that these matters are such that the Tribunal could not be satisfied that the applicant had discharged the burden of rebutting the presumption that he poses a risk to the safety of children.
For the reasons I have already given the applicant has not said he was misled as to the applicant's age - his evidence was that he did not make any inquiries about her age but assumed it was 15 or 16. In my view the applicant is now fully aware of his responsibilities and he would make the necessary enquiries. That is, having regard to the evidence I consider he now has a good understanding of his responsibilities when in a position of trust.
I am also satisfied that the applicant's expressions of concern for the victim are genuine. These expressions of concern are inconsistent with him having used the word "duped".
For the reasons already given, I am satisfied the applicant has the requisite insight into his offending conduct. In regard to counselling, I note this was not part of his bond at the time he was sentenced. Nor did Mr Jones in his report suggest the applicant required counselling due to a lack of insight to his offending conduct.

Conclusions and orders

As I have noted the paramount consideration and the operation of the WWC Act is the "safety, welfare and wellbeing of children and, in particular, protecting them from child abuse."
I have also noted, by reason of his 2008 disqualifying offence, there is a statutory presumption that the applicant poses a risk to the safety of children. The question is whether the applicant has rebutted this presumption.
Having regard to the material before the Tribunal, I am satisfied the applicant has rebutted the statutory presumption. The offence, while serious, was at the lower end of the scale of seriousness for such offences. The applicant readily acknowledged his offending conduct from the time it was reported to police. At the time he was 18 years of age. He is recorded as having shown remorse at that time and in my view the likelihood of him reoffending is very low. It is now seven years since he committed the offence. He is now 26 years of age and has no prior offence of this kind and there is no record of him acting in this way again. While it can be said that at the time the applicant befriended the victim and when he engaged in his offending conduct he had little insight into his behaviour, in my view, today the applicant has the necessary insight into his offending conduct.
As I have noted he accepts full responsibility for the offending conduct, including his failure to inquire into the victim's age. I am also satisfied that his expressions of concern for the victim are genuine. Since his offending conduct the applicant has also modified his behaviour in that he has changed his privacy settings on his MSN Messenger and other social media contacts to ensure he only has contact with his known friends.
On this basis it is appropriate to make the orders sought. Accordingly I order: 1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012 in respect of the Crimes Act 1900, s 66C(3) offence, of which he was convicted on 28 July 2008; 2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant with a working with children clearance. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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 December 2015

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (1)

Cases Cited (4)