BSR v Office of the Children's Guardian

NCAT Administrative and Equal Opportunity|2015-07-30

Counsel: J Glisson QC (Applicant) File Number(s): 1510141

REASONS FOR DECISION

The applicant, who in these reasons will be referred to by the pseudonym "BSR", is a medical practitioner registered in NSW. He applies to the Civil and Administrative Tribunal of New South Wales (NCAT) for review of a decision made by the Office of the Children's Guardian in February 2015 and affirmed on reconsideration, to refuse to grant him a "working with children check clearance". The decision under review was made following a "risk assessment" conducted by the Children's Guardian. The Child Protection (Working with Children) Act 2012 (NSW) (the Act) required the Children's Guardian to conduct a risk assessment because BSR is subject to an "assessment requirement" on account of his acquittal of the charge of two counts of "possession of child abuse material" contrary to s 91H(2) of the Crimes Act 1900 (NSW) (ss 14 and 15(1), cl l(l)(b) of Sch. 1 and cl l(l)(n) of Sch 2 of the Act).
My task is to decide the "correct and preferable decision" having regard to the material before me, including any relevant factual material and applicable written or unwritten law (s 63(1) of the Administrative Decisions Review Act 1997 (NSW)). In so doing the primary issue to be decided is whether BSR now poses a "real and appreciable risk" to the safety of children. For the reasons that follow I have decided to set aside the decision under review and to grant BSR a working with children check clearance.

Background to BSR's acquittal for charges of possess of child abuse material

In June 2009, the Australian Federal Police received information from the Luxembourg Police that an IP address associated with BSR's home address had been identified as accessing child pornography websites. In August 2011, the AFP executed a search warrant on the home occupied by BSR, his wife and children. The AFP located and seized material, including a computer tower and DVDs, which revealed the presence of child pornography.
BSR was subsequently charged with one count of using a carriage service to access child pornography material, contrary to s 474.19(l)(a)(l) of the Criminal Code Act 1995 (Cth), and two counts of possession of child abuse material, contrary to s 91H(2) of the Crimes Act. BSR was committed to the District Court on these charges.
On 10 September 2012, following the close of the Crown's case, her Honour Judge Wells SC directed the jury to acquit BSR on all charges. In broad terms the reasons for that decision were: 1. The first count alleged that BSR had accessed an image on 12.30am on 11 August 2011. At trial the Crown's expert conceded that it may have been downloaded without any action being taken by BSR, for example by the action of a virus. 2. The second count related to an image downloaded and saved in a folder on BSR's computer named "Sandra". Evidence indicated that "Sandra" was not a child. 3. The third count related to the material contained in three DVDs. The Court held that there was no evidence that BSR had created or labelled the disks or ever had them in his possession. Further, the Court did not accept that the Crown had proved the images depicted children. An expert also accepted that the material may have been copied from a much larger source, so that the BSR may not have been aware of the presence of child pornography within the material he copied.

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 (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 this Act. "Children" are defined as persons under the age of 18 (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 (s 8(1)). "Child-related work" is defined to include work that involves "direct contact" with children (s 6(1)). Work as a health practitioner providing health services in wards of hospitals where children are treated, and other work as a health practitioner providing child health services, is declared to be "child-related work" (s 6(2)(c) of the Act; reg 6(1) and reg 6(1) of the Child Protection (Working With Children) Regulation 2013 (NSW)).
Part 3 of the Act deals with the granting and refusal of clearances. If the Children's Guardian becomes aware that a person is subject to an "assessment requirement", the Children's Guardian must conduct a risk assessment to determine whether the applicant poses a risk to the safety of children (s 15(1)).
Section 15(4) provides that in making a risk 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.
Section 18(2) states: (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
A person who has been refused a working with children check clearance by the Children's Guardian may apply to NCAT for an administrative review under the Administrative Decisions Review Act (s 27(1) of the Act).
Part 4 of the Act deals with reviews and appeals. Section 30 prescribes the matters that NCAT must consider in determining an application for review of a decision made by the Children's Guardian to refuse to grant a working with children check clearance. Those matters mirror those listed in s 15 of the Act, that the Children's Guardian may consider in conducting a risk assessment: 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.
Sections 15 and 30 were amended by the Child Protection Legislation Amendment Act 2015 (the Amending Act). BSR's application is not affected by those amendments as it was made before the date those amendments came into effect, 2 November 2015: cl 26 of sch 2 to the Amending Act.
An applicant must fully disclose to the Tribunal any matters relevant to the application (s 27(4)).
It is settled that the word "risk" in the Act should be 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 explanation given by Young CJ in Eq. in Commission for Children and Young People v V [2002] NSWSC 949 at [42] 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 than 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 the children'. Administrative Review
In undertaking the task of determining the "correct and preferable decision", the Tribunal "stands in the shoes of" the Children's Guardian and may exercise all of the functions conferred on the Children's Guardian: s 63(2) of the Administrative Decisions Review Act. As noted, pursuant to s 15(4) of the Act, the Children's Guardian may consider a number of matters when conducting a risk assessment. The Tribunal is explicitly required to consider a similar list of matters when determining an application for review: s 30(1). Both sections are relevant to the Tribunal's determination, although as noted they are substantially the same: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 (BJB no 2) at [49].
Neither party bears a burden of proof in establishing that the decision was, or was not, "the correct and preferable" decision: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]; BJB (No. 2) at [32]. However, a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.
Where a matter requires proof it should be proved to the civil standard, on the balance of probabilities: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; BJB No. 2 at [32].
However, the ultimate issue is not whether a particular allegation has been proved or not proved. This is subservient and ancillary to the ultimate issue: whether in all the circumstances the applicant poses a real and appreciable risk to the safety of children. It is well-established that the Tribunal's approach to this issue will be, with the necessary changes being made, similar to that taken by the High Court in M v M [1988] HCA 68; (1988) 166 CLR 69 at [19]-[25] in the context of a family law application for access: see, for example, BKE v Children's Guardian [2015] NSWSC 523 (BKE) per Beech-Jones J. In that case, His Honour stated (at [33]): ... it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. 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.
Accordingly, even where the Tribunal is not satisfied that the relevant allegation is proved, it may nonetheless conclude that there is a real and appreciable risk to the safety of children.

Section 30 considerations

Counsel for the Children's Guardian has fairly described the material in relation to each of the relevant factors as follows:

(a) the seriousness of any matters that caused a refusal of a clearance to be given to BSG

Of the 24,000 plus pornographic images, seized by the AFP, the vast majority of depicted adults. The material identified by the AFP as "child pornography" comprised a total of 792 images of which: 1. 773 images depicted children in erotic poses. 2. Of the remaining 19, 10 depicted sexual activity between children or masturbation, 6 depicted non-penetrative sex between adults and children, and 3 depicted penetrative sex between adults and children.

(b) the period of time since those matters occurred and the conduct of BSR since they occurred

The date of the earliest access of child pornography was said to be 23 March 2009, and the latest was on 11 August 2011. No further allegations have been made about BSR. He has been of positive good character since those matters occurred, maintaining his employment as a Radiologist in a large Sydney hospital.

the age of BSR at the time the offences or matters occurred the age of each victim of any relevant conduct at the time they occurred and any matters relating to the vulnerability of the victim the difference in age between the victim and BSR and the relationship (if any) between the victim and BSR whether BSR knew, or could reasonably have known, that the victim was a child BSR's present age

BSR is now 49 years of age. In 2009 he was 44. The victims depicted in the images were said to be between seven and 16. The age difference was therefore between 28 and 37 years. The Children's Guardian submits it would have been obvious to BSR that the images the subject of the charges were of children. (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred
BSR has no criminal record. (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
The Children's Guardian contends that the likelihood of repetition is not known pointing out that BSR has not obtained any psychological evidence or a risk assessment.

(j) any information given by the applicant in, or in relation to, the application

This material is contained in the material produced by the Children Guardian under s 58 of the Administrative Decisions Review Act and is referred to below. (k) any other matters that the Children's Guardian considers necessary
BSR is not in child-related work, and does not have an ongoing voluntary role in child-related work. He had wanted to volunteer at his local golf club.

Does BSR pose a risk to the safety of children?

In arriving at the correct and preferable decision, the key issue to be decided is whether BSR poses a risk to the safety of children. In answering that question I must have regard to the matters listed in s 30 of the Act together with any other relevant matters. That assessment must be made having regard to the paramount consideration of the Act: the safety, welfare and well-being of children and, in particular, protecting them from child abuse.
Turning to the matters I am required to consider:

The seriousness of any matters that caused a refusal of a clearance to be given to BSG

There can be no argument that the offences for which BSR was charged involving child pornography offences are inherently serious. This is indicated not only by community disapprobation but also by the legislature's imposition of a maximum penalty of 10 years imprisonment for the possession of such material. BSR does not contest this point.
BSR denies having any involvement in the downloading or viewing of the images of child pornography. However suspicion that he had some involvement must arise for a number of reasons. First, there is evidence that his IP address was used to gain access to child pornography sites. As the Children's Guardian argues, this suggests that at least some of the images were downloaded at his IP address.
Second, the IP address was also used around the time the child pornography sites were accessed for other apparently adult activities, such as searching for information concerning fishing, lotto results, stocks and shares, and boats. This suggests that the computer was mainly used by an adult and, although I am hesitant to embrace gender stereotypes, given the interests being followed, probably a male person.
Third, the relevant computer was in a home office used by BSR. Of course, others in the household, and possibly visitors to the house, had access to the office and the computer.
Fourth, some of the material was downloaded in 2002 when BSR's eldest child was only seven years old. While possible, it seems unlikely that a child of that age would either have the interest in, or the sophistication to, trawl the internet in search for pornography.
Finally, some of the material was downloaded onto DVDs marked "Radiology". BSR is a medical practitioner specialising in radiology. Possession of a DVD containing images of x-rays and CT scans would be unusual for a child or a non-medical person. On the other hand, it would arouse little suspicion in the hands of a medical practitioner and would be unlikely to be examined by others out of idle curiosity.
Aside from the question of physical possession of the material, it is also relevant to consider the question of intention to possess child abuse material. If, as agreed by the parties, the vast bulk of the images are not child pornography; and if, as established, some of the images of children were apparently downloaded from sites which carried a disclaimer that the persons depicted were adults; and if, as may be the case, many of the images were downloaded in bulk, it would be very difficult to be satisfied beyond a reasonable doubt, or even on the civil standard of proof, that the possessor of the images had the intention of possessing child pornography. In reaching that conclusion I note that the child pornography images made up about 0.03% of the total number of images captured and many of the sites from which they were taken were advertised as adult pornography.
The Children's Guardian concedes that there is no evidence that BSR accessed the child pornography seized from his home office. However the Children's Guardian contends that in circumstances where BSR failed to offer an explanation to the Tribunal for the fact that images of child pornography were found to be in his home office, where he was required by s 27(4) of the Act to fully disclose to the Tribunal any matters relevant to the application, it is open to the Tribunal to find that he poses an "unacceptable risk" even if unable to make a positive finding that BSR had accessed or viewed the material.
BSR rejects the contention that he failed to make full disclosure to the Tribunal and states that his case is he does not know how the material found its way on to the discs and onto his computer. He asserts that he has made full disclosure not only to the Tribunal and the Children's Guardian of the circumstances surrounding him being charged with and later acquitted of the subject offences, but also to the relevant health regulatory bodies including, the Health Care Complaints Commission, the Medical Council of NSW and NSW Health.
In the course of these proceedings, Counsel for BSR alluded to possible explanations for the offending material being found in BSR's home office, However, apart from being told that BSR does not know how the material came into his possession, BSR has provided no explanation for the discovery of the existence of the material. While BSR is not assisted by his failure to provide an explanation in these proceedings about how the material seized by the AFP came into his possession, it is nonetheless not determinative of the issue of risk.
I find it more probable than not that despite his denials BSR had physical possession of child pornography, nonetheless I have doubts that this was his (or the true possessor's) intention. It seems apparent that the possessor of this material was much more intent on gathering adult material which, no doubt, reflected their interests. While no argument that possession of child pornography is objectively serious, if indeed BSR had physical possession of the material, I am not positively satisfied that there was any subjective intention on his part to possess. If a lingering doubt or suspicion remains, as it does, that counts against BSR: see M v M at [21]; BKE at [33]. But because of my doubts about his intention, I think the available evidence in relation to this factor points towards BSR not being a real and appreciable risk to children.

The period of time since those matters occurred and the conduct of BSR since they occurred

It is now several years since the last known activity of this type that can be associated with BSR. There is no new evidence that suggests or could give rise to a reasonable suspicion that BSR has engaged in collecting or using such material since 2011. Even if BSR was involved in this activity in the period between 2009 and 2011, it is likely that being charged and tried was a very humiliating experience and, one would expect, if such a personal deterrent were needed, that the experience would operate very powerfully as one. Common sense and common knowledge suggest that when there is no further evidence or intelligence of further involvement in alleged criminal activity on the part of an individual that (i) their original claims of innocence were correct (notwithstanding the nature of the circumstances that brought them under suspicion) or (ii) that they have learned from experience and changed their behaviour to a more socially acceptable mode. Either way, it appears to me that this factor weighs in BSR's favour.

Factors (c)-(g)

BSR was a middle-aged man at the time he allegedly collected the material. The children depicted in the images were said to be the between the age of seven and 16. If other than a negligible proportion of the material captured depicted children, the risk to children's safety would, in my opinion, be "real and appreciable". Given the circumstances, however, especially the lack of evidence that BSR actually viewed the material, it is difficult to give significant weight to this as a factor by itself against the BSR.

Factor (h)

BSR has no criminal record. The alleged offences of which he was acquitted are the only matters of relevance. BSR is entitled to have his criminal record (or lack of one) placed in the balance in his favour. It gains greater, and significant, weight due to the fact that it has remained unblemished since the time of his trial, a substantial period.

Factor (i)

It was argued by the Children's Guardian that there is no evidence concerning the likelihood of repetition. BSR has not obtained any psychological reports it is true. His case is that he does not need to prove that there is no likelihood of repetition because there was nothing to repeat. Whether or not that is the objective truth, I disagree with the Guardian that there is no evidence on this point. The fact that there is no evidence of repetition is evidence of the unlikelihood of repetition.

Factor (j)

BSR has provided information to the Tribunal concerning his general background and reputation. Of greater than general interest and significance is information to the effect that he has been investigated by the Health Care Complaints Commission, NSW Health and the Medical Council of NSW. The HCCC has dismissed a complaint against him and NSW and the Health Medical Council of NSW has cleared him to work. While not determinative, some weight must be given to these assessments.

Factor (k)

BSR is currently not engaged in child-related work, although presumably some of his patients are children. Nevertheless, the work of radiologists is primarily in interpreting medical imagery rather than dealing face-to-face with patients. Even in consultations with patients, radiologists do not generally physically examine patients. He does not do voluntary work with children but he would like to do volunteer work at his golf club. Golf clubs, as a rule, are institutions catering mainly to adults. It seems unlikely that BSR would come into close, unsupervised contact with children at his golf club.

Conclusion

It is indisputable that the production and dissemination of child pornography places children at risk. The children displayed for the pleasure of the viewers are abused and exploited in a horrific manner. Sexualised images of children tend to break down the normal protections that children have a right to expect from adults. In the minds of some viewers, sexual relations between children and adults are normalised. This disintegration of a fundamental taboo jeopardises children at large.
That it seems unlikely in the foreseeable future that BSR will have direct unsupervised contact with children in paid or voluntary employment is largely irrelevant to the assessment of risk. If found that he is now likely to view or acquire child pornography, in my opinion he poses a relevant risk.
Nonetheless for the reasons discussed above, primarily because I am not satisfied that there was not a subjective intention on BSR's part to possess the offending material, taken together with the passage of time and the absence of any evidence to suggest that since being charged, BSR has, or attempted to possess child abuse material, I am satisfied on balance that he does not pose a real or appreciable risk to children. For these reasons I have decided that the correct and preferable decision is to grant BSR 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 December 2015

Child Protection (Prohibited Employment) Act 1998(NSW)

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Judgment (18 paragraphs)

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Legislation Cited (6)

Cases Cited (7)