BXT v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-09-22

's Guardian [2015] NSWCATAD 65 BLD v Children's Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children's Guardian [2015] NSWCATAD 36 BPX v Children's Guardian [2015] NSWCATAD 114 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children's Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 Gallo v Dawson [1990] HCA 30, 93 ALR 479 Hall v New South Wales Trotting Club Ltd [1977] 1 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 Nanschild v Pratt [2011] NSWCA 85 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 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 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BXT (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent)

Introduction

The applicant, known as "BXT" in these proceedings, on 10 June 2015 filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") concerning a decision of the Children's Guardian, made on 9 March 2015, to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review. The applicant was granted an extension of time in which to file this application by Principal Member Higgins on 17 July 2015. The extension of time was granted until 10 June 2015 which is the date of filing of the application, presumably on the basis that strict compliance with the rules will work an injustice upon the applicant: see section 41 of the Civil and Administrative Tribunal Act 2013 (NSW); Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38].
The Act came into force on 15 June 2013.
The applicant applied for a working with children check clearance on 24 January 2014.
On 5 June 2014 the Children's Guardian forwarded a notice of interim bar in accordance with section 17 of the Act.
In a letter from the Children's Guardian to the applicant dated 9 March 2015 the applicant was informed that the Children's Guardian decided that he poses a risk to children. In other words, the applicant was refused a Working with Children Clearance preventing him from working in "child-related work": section 6(2)(j) and section 8 of the Act; clause 13 of the Child Protection (Working with Children) Regulation 2013.
Principal Member Higgins made directions on 16 July 2015 to prepare the matter for hearing. There was a further mention at which the applicant appeared by telephone on 28 August 2015, at which time the hearing date was confirmed for 22 September 2015. The matter proceeded to final hearing on that date even though the respondent was late to the hearing. There was a suggestion in a letter sent to the Tribunal by the Crown Solicitor prior to the hearing with the consent of the applicant, that the applicant wished to adjourn the proceedings. This application to adjourn was not ultimately maintained by the applicant when he arrived at the hearing on 22 September 2015, after some questions were asked by the Tribunal, concerning any reasons the applicant may have for adjourning the matter despite it having been already confirmed ready for hearing by Principal Member Higgins on 28 August 2015. The applicant indicated he may wish to provide further psychological evidence, but he had not organised that sufficiently to be able to tell the Tribunal if and when that evidence might be available. There was no cogent reason provided as to why the applicant had not attended to this at an earlier time in the management of the application he brought to the Tribunal: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [102], [103]. There was no material the Tribunal could refer to in order to base the exercise of its discretion. If the applicant had maintained an application for an adjournment, it is likely that it would have been refused on the material then before the Tribunal, having regard to the authorities cited in the following paragraphs.
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 an unanimous High Court stated: "In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effect not only upon the parties to the dispute but upon the Court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory applications which has regard to the wider objects of the administration of justice."
In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77, the Appeal Panel after referring to a number of authorities, stated at [22]: "It follows that a number of principles apply to applications for an adjournment: 1. matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, 2. an application for an adjournment should be seen as the exceptional rather than the ordinary course; 3. where the adjournment is caused at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment."
The judicial exercise of discretion by the Tribunal must comply with the guiding principle to facilitate the just, quick and cheap resolution of real issues in proceedings, and in order to exercise its discretion the Tribunal must have some material before it upon which it can base the exercise of its discretion: section 36 of the Civil and Administrative Tribunal Act 2013 (NSW).
The applicant appeared in person. The application for review was heard by the Tribunal on 22 September 2015.
An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
The Tribunal has been assisted by the submissions of the parties.
The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

The evidence relied upon in the hearing

The applicant relied upon the following documentary material: 1. Documents filed on behalf of the applicant on 10 June 2015 - Exhibit A1; 2. The applicant gave oral evidence to the Tribunal on 22 September 2015;
The respondent relied upon the following documentary material: 1. Letter dated 18 September 2015 to the Registrar NCAT - Exhibit R1; 2. Volume of section 58 Administrative Decisions Review Act 1997 (NSW) documents filed 30 July 2015 - Exhibit R2; 3. Reasons for decision filed 5 August 2015 - Exhibit R3; 4. Additional Documents filed 25 August 2015 - Exhibit R4; 5. Outline of Submissions on Behalf of the Children's Guardian - Exhibit R5; 6. Documents produced under Summons by Psychologist for the applicant: Exhibit R6.
The applicant gave oral evidence and was cross-examined on 22 September 2015.
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 Tribunal has previously identified the relevant legal principles to be applied in an application under section 27 of the Act: BPA v Children's Guardian [2015] NSWCATAD 36, at [13]-[33], [39]-[42]; BKV v Children's Guardian [2015] NSWCATAD 65, at [14]-[43], [122]-[127]; BHY v Children's Guardian [2015] NSWCATAD 91, at [21]-[56]; BPX v Children's Guardian [2015] NSWCATAD 114, at [17]-[53]. To some extent the discussion which follows is repetitive of those matters, but is set out in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that a party aggrieved by a decision made under the Act 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 law applied to this decision is therefore set out 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 paragraph quoted from the decision in BJB v NSW Office of the Children's Guardian (No 2) 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 obligation but not the legal onus is thus carried by the applicant on some but not all factual matters: and by the respondent on some but not all such matters. 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. The Tribunal will 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.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and have not been overruled by a Superior Court at this time. The applicant had the opportunity to respond to the submissions based upon those principles, made by the respondent in Exhibit R5. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, 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(6) which is as follows: "(6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children."
The applicant has been convicted of a number of offences involving violence. These convictions are referred to in more detail later in these reasons. The risk assessment was appropriately triggered.
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] NSWIR Comm 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 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 (where, unlike an application under section 27 of the Act, there is an onus on the applicant to prove he or she is not a risk to children): "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 again set out the reasoning behind the Tribunal's determination in relation to section 27 of the Act proceedings where there is not at the time of this decision an authoritative published pronouncement made by a Superior Court.
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 and BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33] .
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 is not 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 placed under subheadings referring to 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

The applicant was charged with assault occasioning actual bodily harm for which he was convicted and sentenced on 9 April 2014 to a term of imprisonment for 12 months, suspended upon his entering into a bond for 12 months, on condition that he be of good behaviour, under Crimes (Administration of Sentences) Act 1999 (NSW), and that he accept the supervision and obey all reasonable directions of Probation and Parole particularly in relation to counselling and other interventions concerning anger management. This offence occurred on 24 May 2013 when the applicant approached the victim who was a fellow student at TAFE, and pointed to a necklace which the victim was wearing. The applicant asked the victim whether he worshipped the devil and the victim replied he did not. The applicant became agitated and swore at the victim: "I fucken stab Satanists." The applicant stood over the victim and punched him several times with both fists to the nose, eye and mouth areas. The victim suffered pain and lacerations as a result of the assault. When the victim tried to cover his face and head, the applicant wrapped both his arms around the victim's neck in a headlock. Other students attempted to break the applicant's grip on the victim and pull him off. They eventually did. The applicant walked away, got in a vehicle and left the campus. The victim was in fear of the applicant.
The applicant was also involved in an incident on 6 December 2012. The victim was driving his vehicle on a main road when he decided to turn left. The victim merged into the left lane in order to turn left. The applicant was driving along in the same direction and sped up to prevent the victim merging into the left turning lane. The victim managed to merge into the left turning lane and the applicant then followed him. The applicant rammed the victim's vehicle from behind on 2 occasions, causing damage to the victim's vehicle. The victim stopped and the applicant stopped and approached the victim's car on foot. The applicant wielded a small baseball bat which he swung twice at the victim, hitting him on the forehead. The victim suffered bruising to his face, eyes and forehead. The victim's car was also damaged. On 21 October 2013 the applicant was convicted of assault occasioning actual bodily harm in relation to this matter. The applicant was sentenced to a supervised section 9 bond to be of good behaviour for 3 years, under Crimes (Administration of Sentences) Act 1999 (NSW). The applicant was sentenced in relation to the offence of drive vehicle in a menacing manner with intent to menace to a Community Service Order for 450 hours. In respect of the offence of not disclose the identity of driver/passenger he was sentenced to a Community Service Order of 200 hours. In respect of failing to give particulars to the other driver he was fined $600. On 24 March 2015 the applicant was called up in respect of this bond and re-sentenced to a section 9 bond for 18 months, under Crimes (Administration of Sentences) Act 1999 (NSW). That bond is due to expire later in 2016.
On 28 October 2008 the applicant was driving in his van behind a victim when he suddenly overtook the victim and merged into that lane. The victim sounded his horn, the applicant shouted abuse and the victim told him to "get stuffed". The applicant got out of his van, walked quickly to the victim's vehicle then punched the victim through the open window on a number of occasions causing lacerations to the victim, swelling to his right eyelid and forehead and red marks on his forehead. The victim felt dizzy and concussed. The victim found a folded up "lock knife" in his lap after the applicant walked away. On 3 August 2009 the applicant was convicted in respect of the common assault and fined $900 with Court costs of $76. The applicant entered into a section 9 bond to be of good behaviour for 2 years, under Crimes (Administration of Sentences) Act 1999 (NSW). In respect of having custody of a knife in a public place he was fined $350.
The applicant also has some driving offences in 2007 for driving whilst his licence was suspended (also in 2010) and using an unregistered and unregistrable motor vehicle, and was found in possession of housebreaking implements and goods suspected of being stolen in 2008.
These offences are serious and reflect a pattern of behaviour which has little regard for the safety and rights of others citizens. The offences all occurred in a public place.

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

The most recent offence occurred on 24 May 2013. The conviction for that offence occurred on 9 April 2014. They are relatively recent.
Since that conviction the applicant was charged with a further offence of common assault (domestic violence related), and stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence) on 12 October 2014. Those charges did not proceed because the alleged victim did not appear at Court. It is concerning that these charges were laid. The applicant's explanation for the events which led to the charges being laid require consideration.
The applicant says that the young woman who was the alleged victim had left his friend in the city. She came to the applicant's unit and let him in her car. He was sitting in the front passenger seat and she was in the driver's seat. There was a discussion about why she left his friend in the city with no way to return home. The applicant says he did not lay a hand on her. Apparently this girl was performing a service for the applicant and his friend by effectively chauffeuring them to different parts of Sydney.
It was alleged that the applicant slapped the victim and grabbed her by the throat. It is also alleged that the applicant threatened to harm her family. It was alleged that police observed marks on her neck and that the applicant had threatened and swore at her.
The applicant apparently knew the girl and stated that he did not wish to talk to this girl anymore but she wanted to continue to talk or continue the relationship in some way, contrary to what he wanted. The applicant said that the girl wished to drop the charges but the police wanted to take the matter further. The case did not proceed, as previously stated, because the alleged victim did not turn up to court. The police offered no evidence on the third occasion that the matter was in Court and so it was dismissed.
The applicant has worked as a volunteer youth worker prior to the imposition of an interim bar under the Act. The applicant has told the Tribunal that he has found a passion to teach kids that his behaviour was not the right way to go. The applicant wishes to stop the cycle of violence. The applicant said to the Tribunal that he has done all the things that he can to address his anger issues.

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

The applicant was 20 years of age at the time of the first offences. The applicant was 25 at the time of the last offences.

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 victims of the road rage incidents were adult males who were vulnerable because they were driving in the car at the time that they were attacked by the applicant. The victim of the offence in 2013 was a fellow student who was sitting down when attacked on campus. That victim was aged 25 when the applicant assaulted him.
Irrespective of the age of the victims, the victims are vulnerable to the physical and psychological harm perpetrated by the applicant's behaviours. Witnesses to those offences are also vulnerable to those types of harm, particularly if the incidents that occurred in public on a public road were witnessed by any children.

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

Apart from the victim who was a fellow student at TAFE aged about the same age as the applicant, the other known victims were older than the applicant.

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

None of the victims in relation to the offences was a child. However, members of the public include children and persons of varying ages. It would appear that the applicant had no regard to who may have witnessed his acts of aggression in public.

The person's present age

The applicant is currently 27 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

The applicant's criminal history is recorded elsewhere in these reasons. It is considered that the total criminal history is serious particularly in relation to the pattern of violent assaults for objectively relatively minor precipitating incidents.
The conduct of the applicant since the convictions is far from unblemished. Further concerning incidents have been reported even though there have been no further convictions.

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

The applicant clearly has had a problem managing his anger and in a presentence report, prepared in October 2013, it was noted that the anger management issue was the contributing factor to his offending.
The applicant had previously undertaken anger management for a 12 week course in 2009 for which he reported a benefit. There was a repeat of the behaviour after this intervention.
The applicant has undertaken some psychological consultations commencing in 2013 and ending in July 2014. The psychologist's records show that the applicant adopted a philosophy of pre-emptive strike in that he would "hit first rather than be hit from behind". This is recorded by the psychologist in a consultation on 26 November 2013. The applicant says that his attitude has now changed.
In the psychologist's later records in mid-2014 the applicant was still having difficulty dealing with his agitation and was advised to think positively rather than reacting.
The presentence report which was compiled on 9 April 2014 noted that the applicant reported a history of poor conflict resolution skills and that he resorted to violence in order to resolve conflict.
It is possible that the applicant is on the road to recovery from his past violent behaviours and attitudes. It is, however, not evident that there has been any sufficiently sustained change to the applicant's behaviours. It was submitted by the respondent that not enough time has expired since the more recent events for the Tribunal to be satisfied that the applicant does not pose a risk to children. That appears to be a correct assessment of the length of time which might indicate a sustained change.

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

The applicant has provided some information including references, and a sworn statutory declaration dated 30 July 2014. The applicant also gave oral evidence and was cross-examined.
The reference from the youth centre at which the applicant performed volunteer youth work shows that he has demonstrated an eagerness to break with his past and make a difference in a role which would positively help young people. The applicant squarely acknowledged that he has always been in trouble on a regular basis in the past, but that he has decided that he has a calling to become a youth worker. This is his ambition.
A reference from a family friend who has employed the applicant as a concreter asserts that the applicant is hard-working, honest and trustworthy. The observation made is that the applicant has changed his behaviour and is now a lot calmer. The respondent submits that significant weight could be placed on referees who are aware of the circumstances of the offences and allegations made about the applicant. It is submitted where the references are not familiar with and do not refer to the latest incident of alleged aggressive conduct, the references should be given little weight.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those other matters which the Children's Guardian considers necessary.
The respondent submits that triggers for the applicant's anger were identified in April 4014 by his psychologist as: "Disrespect..., thoughts of breakdown of his family, happy children at school, anyone that seems happy, people who appear better than me."
The respondent submits that there is no evidence that the applicant has shown that he is able to overcome his anger on being faced with these triggers.
The applicant, when he worked as a volunteer youth worker, was supervised by two employees. It is not known how the applicant would respond to his triggers if his employment was unsupervised.

Consideration and determination

The applicant is a relatively young man. The applicant is yet to mature emotionally and psychologically. There is little evidence that he has matured sufficiently to reflect adequately upon his earlier indiscretions and implement effective strategies to prevent their re-occurrence.
The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. The behaviour was unplanned and opportunistic and exhibited a significant lack of self control and incapacity to implement any anger management strategies. It would appear from the criminal history that the behaviour of the applicant is part of a pattern of ongoing or escalating events. The applicant has not been able to show that he has the capacity to de-escalate his anger responses.
The behaviour is relatively recent, and the behaviour, if repeated, would do significant harm to the victims as well as any bystanders who, in a public venue, are likely to include children. The effects of exposure to violence upon the development of children and their responses to such an environment is well known. The paramount principle under the Act includes protection of children from 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.
There is a lack of evidence of mitigating factors such as significant and sustained positive socialisation since the behaviours occurred. Indeed there has been a recurrence of concerning behaviours over a significant period. There is little evidence of 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 and without more than an expression of such sentiment, is a hollow response to an existing and apparently entrenched pattern of behaviour.
The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
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.
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 evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

Conclusion

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 order of the Tribunal is that: 1. The decision of the Children's Guardian dated 9 March 2015 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 10 June 2015 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

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: 11 February 2016

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