CGC v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-05-18

REASONS FOR DECISION

The Applicant, CGC, seeks review of the decision of the Respondent, the Children's Guardian, to refuse his application for a Working with Children Check clearance, under the Child Protection (Working with Children) Act 2012 ("the Act").
The Applicant is a 46 year old Aboriginal man who, until recently, was living in regional New South Wales. He is married and has four children.
On 3 March 2014, the Applicant applied to the Office of the Children's Guardian (the Respondent) for a Working with Children Check clearance.
The Respondent conducted a risk assessment of the Applicant, and on 6 October 2015, determined to refuse the Applicant's application for a Working with Children Check clearance.
On 6 November 2015, being dissatisfied by that decision, the Applicant made this application for review of the Respondent's decision.

The Child Protection (Working with Children) Act

The objects of the Act are as follows: 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 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.'

Role of the Tribunal

Section 27 of the Act makes provision for administrative review by the Tribunal of a number of decisions of the Respondent, including a decision to refuse a Working with Children Check clearance. That section relevantly provides: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a Working with Children Check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) … (3) … (4) An Applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
The role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children's Guardian. Administrative Decisions Review Act 1997, s 63.
That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing. YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110];AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]
The 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. Civil and Administrative Tribunal Act 2013, s 36.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.
Procedural fairness and other aspects of natural justice, of course, 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 Balencio (1987) 8 NSWLR 436.
At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so.
At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [Thus] in such cases 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."

Administrative Decisions Review Act 1997

Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders: 1. to affirm the decision of the Respondent, or 2. to vary the decision, or 3. to set aside the decision and make a decision in substitution for the decision it set aside, or 4. to set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal.
At any stage of proceedings, the Tribunal may remit the decision to the Respondent for reconsideration. Administrative Decisions Review Act 1997, s 65.

Child Protection (Working with Children) Act 2012

Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the Respondent may have regard when conducting its 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.
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 2012 Act: 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].
In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an Applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."

Burden of proof

The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].
Although the Applicant has no legal burden he does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.
An application pursuant to section 27 is a merits review and not a review in which the Applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
The Applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act.

Evidence before the Tribunal

The Respondent tendered into evidence the Respondent's risk assessment report, responses from employers and community organisations, and documents provided by government departments and agencies, including the NSW Police, the courts, Corrective Services, and Family and Community Services.
The Applicant relied on his application, two statutory declarations and various character references. He also gave oral evidence at the hearing and was cross-examined by Counsel for the Respondent.
The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act.

(a) Seriousness of any matters that caused the refusal of the Applicant's application for a clearance

The matters that triggered the risk assessment of the Applicant include convictions for an offence of maliciously inflict grievous bodily harm and for an offence of assault occasioning actual bodily harm, both of which were committed in 1989 when the Applicant was aged 19 years. In respect of the first offence, the facts indicate that that after a night out, the applicant assaulted a man, causing the man's glasses to shatter and resulting in serious damage to the man's eye. In relation to the second offence, the facts indicate that the Applicant was involved in a fight at a bar, during which he assaulted a barman with a smashed bottle, causing wounding to the barman's arm. On each of the offences, the Applicant was sentenced to six months' imprisonment. In relation to the first offence, the Applicant was also made subject to supervision and a post release programme for Aboriginal offenders.
In his oral and written evidence, the Applicant did not dispute the facts as alleged. He said that at the time of his 1989 offending, he was young and depressed, and alcohol was involved in the commission of both offences. In cross examination, the Applicant referred to reacting to incidents where he believed his sisters were being denigrated and/or assaulted. In relation to the second offence, in his police interview and in cross examination, the Applicant said the victim had punched his sister in the stomach, and had called him a "black cunt". He said that although at the time of the offending he believed his reactions were reasonable, he now does not view his reactions as reasonable.
It is evident that the offences committed by the Applicant in 1989 were objectively very serious, involving violence and aggression. The Applicant's actions in each of the matters were both unreasonable and reprehensible. Notably, in relation to the first offence, the Court found the Applicant's attack on the victim was unprovoked. Convictions for the offences resulted in custodial sentences being imposed on the Applicant, which reflects the severity with which the Court found the Applicant's conduct.
In 2001, the applicant was also convicted of common assault. There are no facts available in respect of this matter, and therefore the details upon which the Applicant was convicted and sentenced are not known. A police COPS summary indicates the Applicant assaulted his then partner in the context of an argument, after which his partner was observed as being in a distressed state with redness to her right cheek. The Applicant was ordered to enter into a section 9 bond, subject to the supervision of the NSW Probation Service and on condition that he attend three Alcoholics Anonymous meetings for a period of three months.
The Applicant denies the version of events as detailed in the COPS summary. Rather, he stated that at the time of the dispute with his former partner, he had been informed that his sister had been admitted to intensive care. He stated that he was attempting to obtain his car keys from his partner so that he could drive to the hospital to be with his sister, and in the process he ripped the pocket of his partner's shorts. He denies the victim sustained injuries as alleged by the COPS summary.
In this regard, there were no police facts to indicate the basis upon which the Applicant was convicted and sentenced. Whilst domestic violence is objectively serious, the fact that the matter was dealt with in the Local Court and the sentenced imposed on the Applicant suggests that the Court considered the Applicant's conduct on that occasion to be of lesser severity than the COPs summary indicates, and of lesser severity than the 1989 offences.
None of the victims of the Applicant's offending were children and there is no evidence that the offending was committed in the presence of children. However, it is clear that children can be both the direct and indirect victims of violence, and in this regard, the offences are serious and relevant to the issue of whether the applicant poses a risk to the safety of children 2010 charge and dismissal
In addition to the convictions outlined above, the records relied upon by the Respondent disclose that the Applicant was charged with an offence of assault occasioning actual bodily harm in company in 2010. In particular, it was alleged that the Applicant (and his wife) assaulted a female victim in licenced premises. The Applicant's wife was convicted of an offence arising out of the incident. However, the Applicant was found not guilty of the offence, which was subsequently dismissed by a Magistrate of the Local Court. Following the dismissal of the charge, costs were awarded against the Informant (the NSW Police).
The Applicant has consistently denied the matter, both at the time of the charge in 2010, and during the risk assessment and Tribunal proceedings. There was limited information before the Tribunal as to the basis upon which the Applicant was found not guilty and the charge dismissed. Although there were several witness statements and exhibits, there was no transcript of the evidence of the proceedings in the Local Court or a judgement of that Court. However, it is of relevance that not only was the Applicant found not guilty of the offence, a costs order was made against the Informant. The Tribunal accepts the Applicant's submission (and reference to the relevant legislation) that costs orders in summary matters are made in exceptional cases only, and generally in the context of deficiencies in the prosecution case. Having regard to the inference which can be drawn from the Applicant's acquittal and subsequent costs order, and on the evidence before it, the Tribunal could not be satisfied that the alleged incident in 2010 occurred as alleged in the records produced by the Respondent.
The Tribunal notes that the Respondent, in written submissions, submits that at the very least the Applicant failed to take any action to prevent his wife from assaulting the victim. However in the Tribunal's view, the same issues are relevant and are not overcome by the submission that there was some lesser involvement on the part of the Applicant. Whilst recognising that the criminal standard of proof (beyond reasonable doubt) is not applicable for the purposes of the Tribunal's determination, nonetheless, the Tribunal could not be satisfied on the balance of probabilities that the Applicant engaged in conduct as alleged from the records relied upon by the Respondent, either proactively, or as result of a failure to prevent his wife causing harm to the victim. Nor could the Tribunal conclude that the circumstances surrounding the matter means that the Applicant poses a risk to a child. As a result, the Tribunal accorded limited weight to the material in relation to the 2010 charge of which the Applicant was acquitted.

(b) The period of time since the matter occurred and the conduct of the Applicant since that time

The offences were committed approximately 27 years ago and 15 years ago respectively.
Since his last conviction in 2001, the Applicant has not been convicted of any criminal offences. He has been in full-time employment in the public sector for 20 years. It has included work in the juvenile justice sector and the courts. He has been married to his wife, Mrs S, for 13 years. They have three children together, aged 11, 9 and 8 years. The Applicant also has a 24 year son from a previous relationship.
The Applicant has been, and continues to be, heavily involved in sport. He has played rugby league, including at a high level for representative Indigenous teams. For the past five years, he has coached local community junior rugby league and touch football teams, and provides mentoring to Indigenous adults and children.
In 2014, the Applicant and his wife became the authorised carers of a 9 year child who is the grandson of the Applicant's sister. The boy, whose parents have drug and alcohol issues, was removed from the care of his biological parents and placed in foster care. The child went and lived with, and was cared for by, the Applicant and his wife for a number of months prior to the Applicant's recent move away from regional New South Wales.

At the time of commission of the trigger offences, the Applicant was aged 19 and 31 years respectively.

(d) The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim

In respect of the first two trigger offences, the victims were not familiar to the Applicant. In relation to the first offence, the Court found the Applicant's attack on the victim to be unprovoked. The victim of the second matter was a barman working in licensed premises. The victim of the Applicant's 2001 offence was his partner at the relevant time and the offence occurred in her home. The victims of the Applicant's offences were adults.

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

The victim of the first offence was an adult, however, his age is not known. The victims of the second and third offences were 21 years old and 38 years old respectively. Therefore, the victims were 2 years and 7 years older than the Applicant at the relevant times.

(f) Whether the Applicant knew, or could reasonably have known, that the victim was a child

None of the victims of the Applicant's offences were children.

(g) The Applicant's present age

At the time of the Tribunal hearing, the Applicant was 46 years of age.

(h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the matter occurred

In addition to the offences outlined in preceding paragraphs, the Applicant has convictions for other offences which include offences committed whilst he was a juvenile. The Applicant's offences include behaving in offensive manner, property damage, driving offences and an offence of supplying false information. In addition, police documents refer to brawls and other matters in which the Applicant was alleged to be involved. However, no charges resulted from those matters and there was a lack of corroborative evidence to indicate they occurred as alleged in the records relied upon by the Respondent. The Applicant denies the matters, all of which occurred prior to 2003, and the Tribunal was unable to accord any great weight to the uncharged matters.
Further details of the Applicant's conduct since his last conviction are detailed in earlier paragraphs.

(i) The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition

In regard to the likelihood of any repetition of engaging in similar conduct in the future, the Applicant did not rely on a psychologist risk assessment. Rather, the Applicant relied on the following factors which he submits indicate that repetition of his past conduct is not likely: 1. The absence of any criminal convictions for a 15 year period; 2. The Applicant's 20-year career in the public sector; including employment where he regularly encounters situations involving people in conflict and in highly emotional states; 3. The stability of the Applicant's marriage to his wife of 13 years; 4. The fact the Applicant has cared for, and raised, his own children; 5. The assessment by the Department of Family and Community Services that the Applicant was suitable to become an authorised carer of a child; 6. The years the Applicant has spent coaching and mentoring children during which there have been no complaints or allegations of inappropriate conduct.

(j) Any information given by the Applicant in, or in relation to, the application

The Applicant seeks a clearance solely to enable him to resume his coaching and mentoring roles in children's rugby league. He does not seek full-time employment in child-related employment and intends on remaining with his current employer, with whom he has been employed for the last eight years.
In his oral and written evidence, the Applicant stated that he grew up on an Aboriginal reserve in regional New South Wales. He said that life in the community was hectic, with a lot of alcohol and abuse issues, and "not something you'd want to put a kid through". The Applicant's mother died when the Applicant was 11 years old, and he rarely saw his father who lived in Sydney. As a result, the Applicant did not have a father figure in his life, and instead he lived with his extended family in about 20 different homes until the age of 19. The Applicant said of his parent's eight children, he was the only one to complete year 12, and always had an ambition of being a police officer.
He said that his offending (in 1989) occurred when he was young, had a chip on his shoulder and suffered anxiety and depression. He indicated he drank alcohol as a form of self-medication. By his own admission, he said he had a lot of issues at the time, and had no-one to whom he could talk. However, when the Applicant was in prison, he undertook a pre-release course and saw a psychologist and a welfare worker with whom he spoke about his issues. He said he knew he had done wrong, and instead of going back to gaol, he got out of gaol and got employment.
The Applicant stated he has learnt from his past, about which he is remorseful, and his communication skills are now much better. Instead of reacting first, he now stops and thinks about things. He said that riding on his motorbike is a way of relieving stress. He stated he no longer associates with the negative people with whom he was previously involved, and his alcohol consumption is different. Rather, he said he drinks responsibly now. He consumes alcohol only once every six months, with family members. He said he does not drink alcohol around children and that no alcohol is kept in his home.
He said his 2001 offence occurred in the context of a hostile relationship with a former partner, and is now in the past. The Applicant has been married for 13 years to his wife, Mrs S, who is a schoolteacher. Their children are all actively involved in sport, and their eldest son, whose rugby league team the Applicant coached for many years, has been accepted into a private school for high school. His daughters are involved in AFL, netball, dance and cheerleading. Both he and his wife play a large role in supporting their children with their various sporting and co-curricular activities.
The Applicant said his employment, which has included working as a youth officer in juvenile justice, has regularly involved a security aspect. In particular, the Applicant's current role requires him to provide security to staff and other persons in the courts system. At times during the course of his duties he comes into contact with people who are angry and violent.
The Applicant has been involved in rugby league for 36 years, both as a player and as a coach. He has coached the game for 16 years, including junior rugby league for six years. This has involved accompanying children on camps and competitions. The Applicant has also held the roles as trainer, co-coach and mentor in Aboriginal junior rugby league. Part of his mentoring role includes talking to children about his background, overcoming his struggles to finish year 12, and going on to be in government employment for 20 years. In the context of his broader involvement in Aboriginal rugby league, the Applicant often advises Aboriginal men that there is light at the end of the tunnel, and encourages them to be proactive in improving their circumstances and opportunities, including by gaining employment.
In addition to his four children, the Applicant has seven siblings who have children. He said his nieces and nephews respect him. The Applicant stated that he has never harmed children and would never hurt a child. He also said that he would not do anything to jeopardise his life and his kids.
The Applicant relied upon various character references, including by Mr R, an employee of a government department who has known the Applicant for 15 years. Mr R states that he is aware of the Applicant's criminal record, and in his observation, the Applicant has learned from his mistakes and is a loyal, trustworthy and honest individual who has demonstrated a particular gift for working with young people, particularly in sporting activities but also in broader community activities. Mr R also stated that he has left his own children in the Applicant's care on many occasions.
The Applicant also relied upon a reference of Mr T, an officer of a local council who has known the Applicant for over 40 years. Mr T expressed that that Applicant has "battled, struggled and through positive influences is a teacher to youth how are in similar circumstances", and is a "measure of how (the Applicant)'s journey has come full circle from being a troubled youth to supporting, mentoring, coaching and being a positive strong male role model for at risk youth who haven't the male figure in their life".
The President of the rugby league club whose junior team was coached by the Applicant, states that he has never observed the Applicant to demonstrate inappropriate behaviour or abuse towards children. The President further states that the Applicant is a role model and mentor to the children he coaches, and has a lot of patience and communication skills in dealing with children. A similar reference was provided by the president of the touch football club in which the Applicant was involved. Relevantly, there have been no complaints of inappropriate conduct by the Applicant during his involvement with both organisations. In addition, there is no evidence of any incidents of violent or abusive conduct by the Applicant during the course of his employment.
Counsel for the Applicant submitted that the Applicant does not pose a risk to the safety of children, the question of which needs to be considered in light of the context of an absence of any criminal history involving child abuse, and the 15 year period in which the Applicant has not been convicted of any offence.
Counsel for the Applicant submitted that the Applicant has provided a powerful explanation of why his earlier life was marred by criminal offending, and has demonstrated his rehabilitation through actions. Counsel for the Applicant submitted that the Applicant has been tested as a result of his many years of working with children in his coaching and mentoring roles. Counsel for the Applicant also submits that responsible persons, namely officers of the Department of Family and Community Services and the Applicant's employers, with considerable opportunity to observe and evaluate the Applicant have seen fit to entrust the Applicant with the responsibility of being a foster carer and with the responsibility of providing security to staff and people, including in situations involving conflict and stress. Counsel for the Applicant submitted that it would be inconceivable if such persons would have entrusted the Applicant with these responsibilities if they were of the opinion that he posed a real and appreciable risk of committing child abuse.
Counsel for the Applicant submitted that each of the applicant's roles, namely, in his employment, coaching and foster caring, bring the Applicant into contact with stressful and conflicted situations, and the evidence demonstrates that the Applicant has passed the test. Furthermore, as the Applicant is respected and acknowledged for being a role model for Aboriginal youth, Counsel submitted that to deprive the community of the Applicant as a role model in these circumstances would be profoundly against the public interest.

(k) Any other matters that the Children's Guardian considers necessary

The Respondent opposes the application. Counsel for the Respondent submitted that the Applicant's offending has occurred throughout a long period of the Applicant's life, and in a wide variety of circumstances, including the 2001 offence when the Applicant was employed and in a relationship. In this regard, the Respondent submits that the Applicant's employment and relationship status should not of itself be seen as ameliorating his risk.
Counsel for the Respondent also submitted that there has been no consistent pattern to the Applicant's offending, which has involved different victims and different circumstances. Counsel for the Respondent indicated that many of the Applicant's offences have involved alcohol, which the Applicant continues to consume. Counsel for the Respondent submitted that the Applicant has minimised his conduct and lacks reflection and insight into the severity of his offending. Counsel further submitted that the Applicant has not provided evidence to show that he has addressed the causes of his offending, and does not appear to have insight into the ongoing need for counselling, further courses or intervention.

Conclusion

In this matter, the role of the Tribunal is to review the decision of the Children's Guardian to refuse the Applicant a Working with Children Check clearance, and to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable law.
Relevantly, a Working with Children Check clearance must be granted to the Applicant unless the Tribunal is satisfied that the Applicant poses a risk to the safety of children.
The Applicant comes before the Tribunal with a criminal history which has included offences of violence. The existence of those facts gives rise to concern and has required careful consideration by the Tribunal.
Whilst the Applicant's offences were objectively serious, the Tribunal notes that none of the Applicant's offending was committed against a child. In addition, the last offence of which the Applicant was convicted occurred 15 years ago, and therefore could not be said to be recent conduct. The Applicant's offending, although serious and his intoxication not an excuse, was committed in a context of alcohol misuse and during periods when there is evidence that the Applicant lacked stability in his life.
It is apparent that the Applicant's imprisonment as a result of his 1989 offences was a catalyst for change, and he subsequently gained employment and further stability generally. Although it is noted that the 2001 offence occurred at a time when the Applicant was employed, the evidence indicates that the Applicant's criminal offences have lessened in their frequency and severity; commensurate with the changes he has made to his lifestyle since his incarceration as a young person. He has changed his alcohol intake and the circumstances of his consumption. He has improved his communication skills, and importantly has gained experience, through his employment and involvement in sport, in managing challenging and conflictual situations. Notably, the Applicant's change has also been developed through his responsibilities as a father and foster father. His change in lifestyle is corroborated by his friends, including those who have known him for a considerable period of time.
In his evidence before the Tribunal, the Applicant gave simple and often concrete answers in response to questioning. However, the Tribunal does not accept the Respondent's submission that the Applicant lacks insight into his offending and its severity. Rather, it is apparent that the Applicant genuinely considers himself to be in very different circumstances from those out of which his prior offences arose. It is clear that he values and takes pride in his marriage and children, and his 20 years of employment. In this regard, the Applicant presented as a person for whom the facts speak for themselves. The Tribunal does not accept the submission of the Respondent that the Applicant's failure to provide evidence of attendance at courses or counselling was pertinent to the question of the likelihood of repetition of his offending. Moreover, there is insufficient evidence to indicate that treatment or intervention would in fact have an impact on the Applicant's risk of repetition of offending.
The Tribunal also does not accept that the Applicant has failed to provide evidence that his way of life has changed. On the contrary, the fact that he has been able to sustain long-term employment, raise four children and a foster child, be actively involved in coaching and mentoring children, is the evidence that goes to demonstrate that his way of life has in fact changed. In his evidence, the Applicant expressed remorse for the victims of his past offending. He acknowledged the impact of violence on children, and made reference to his own experiences and observations growing up in a community which involved alcohol and abuse. He specifically referred to not wishing for children to grow up in such environments. The Applicant also acknowledged that exposure to violence can affect children for the rest of their lives.
The Tribunal finds that the Applicant is genuine in his desire to help Aboriginal people, both adults and children, and by example, encourage them to lead stable and productive lives. His motivation for seeking a working with children check clearance is to enable him to continue this contribution in the local community and in sporting activities, in respect of which he has had long-standing involvement.
Taking into account all of the evidence, both oral and documentary, the submissions of the parties, the objects and principles of the relevant Acts, and having regard to the factors set out in section 30(1) of the Act, the Tribunal is satisfied the Applicant has discharged his onus that he does not pose a risk to the safety of children.

ORDERS

Accordingly, the Orders of the Tribunal are as follows: 1. The decision of the Respondent is set aside. 2. The Applicant is granted 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: 10 June 2016

At a glance

Court

Decision date

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Judgment (20 paragraphs)

Parties

Cases Cited (13)