CHG v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-06-06

Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 BVT v Office of the Children's Guardian [2016] NSWSC 1169 BYR v Children's Guardian [2013] NSWADT 310 BZU v Children's Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 Children's Guardian v BQJ [2016] NSWSC 869 CJT v Office of the Children's Guardian [2016] NSWSC 738 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 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 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: CHG (Applicant) Children's Guardian (Respondent) Representation: Counsel: A Douglas-Baker (Respondent)

Introduction

The applicant is known by the pseudonym "CHG" in these proceedings in order to protect the identity of the victim and the applicant. On 1 December 2015 CHG 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 16 November 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 applied for a working with children check clearance on 25 May 2015. On 16 November 2015 a notification letter was sent by the Children's Guardian to the applicant informing him that his application was refused.
The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 do not apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.
The applicant was charged with criminal offences under section 61L and section 61I of the Crimes Act 1900 (NSW). The applicant was found not guilty on all counts other than in relation to a count of common assault. The applicant was found guilty of the common assault.
The applicant is subject to a risk assessment by reason of sections 14 and 15, Schedule 1 clause 1(1)(b) of the Act and the offence provisions are referred to in Schedule 2 clause 1(1)(e) of the Act.
On 10 September 2015 an interim bar was imposed on the applicant pursuant to section 17 of the Act. The provisions of section 17(1) of the Act prohibited the applicant from: "(a) engaging in child-related work, (b) residing on the same property as an authorised carer, (c) residing on a property where a home based education and care service or family day care service is provided."
The applicant wishes and requires to obtain a working with children check clearance, as far as the Tribunal can ascertain, in order to continue to work as a support worker, nurse or related occupation in group homes including those which cater for children with disabilities, but without restriction upon his capacity to work with children. The applicant says that he found his previous work to be enjoyable and very satisfying.
On 10 September 2015 the Children's Guardian advised the applicant that a risk assessment would be conducted and invited him to provide additional information in support of his application.
On 13 October 2015 the Children's Guardian informed the applicant by phone and letter that the Children's Guardian proposed to refuse the applicant and invited him to provide further information. The applicant provided further information after an extension of time is granted to 12 November 2015. However, on 16 November 2015 the applicant was refused the working with children check clearance because it was assessed that he posed a risk to the safety of children. Reasons for refusal were also provided.
The applicant is without a Working with Children Clearance now, preventing him from working in "child-related work": subsections 6(2)(c), 6(2)(e) and 6(2)(k) and section 8 of the Act; clauses 6, 14 of the Child Protection (Working with Children) Regulation 2013.
This is an application pursuant to section 27 of the Act. The application for review was heard by the Tribunal on 6 June 2016.
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].
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: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
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.
There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of 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 the conditions upon which clearances may be granted.
In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.
It is doubtful that the Tribunal may lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in his chosen area is not permitted by the legislation.
An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and 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 parties' legal representatives and their respective submissions.

The evidence relied upon in the hearing

The applicant relied upon the following documentary material: 1. Application filed 1 December 2015 including a letter dated 16 November 2015 containing reasons for refusal of the work children check clearance - Exhibit A1; 2. Statement of the Applicant filed 25 May 2016-Exhibit A2; 3. Statement of the applicant's solicitor dated 25 May 2016 -Exhibit A3; 4. Statement of the pastor who has provided religious support to the applicant dated 12 May 2016 -Exhibit A4; 5. Clinical psychological assessment by Dr Gary Banks dated 6 April 2016-Exhibit A5; 6. Outline of submissions on the applicant by the applicant's solicitor dated 25 May 2016-Exhibit A6.
The respondent relied upon the following documentary material: 1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 11 January 2016, comprising 127 pages - Exhibit R1; 2. Supplementary documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act comprising 2 pages - Exhibit R2; 3. Copy of email string received from Department of Family and Community Services dated 19 April 2016 - Exhibit R3; 4. Further documents filed by the respondent on 6 May 2016 comprising 454 pages-Exhibit R4; 5. Outline of submissions by the respondent's counsel dated 5 May 2016 and filed 6 May 2016-Exhibit R5.
The applicant, his pastor and a psychologist gave oral evidence and were cross-examined on 6 June 2016.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil onus of proof which is the balance of probabilities. The criminal proceedings were determined according to the criminal standard which is beyond reasonable doubt.
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."
This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
Further 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 Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 ("Bronze Wing") at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted: "[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36]. [72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test. … [74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party."
The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 ("Karakatsanis ") at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis: "[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law. [37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting 'a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct'. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])] [38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).] 'The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.' [39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present."(footnotes and references included)
The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil onus to determining a factual matter: CJT v Office of the Children's Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61]. Another Supreme Court decision in relation to section 27 of the Act, which is restricted as to publication, is the decision in BKV v Children's Guardian [2015] NSWSC 1602. It is not currently known whether that latter decision has any impact upon the interpretation of the relevant provisions.
The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous 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 initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
The currently constituted Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. 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 particular decision is transparent and 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."
"Conviction" as defined in section 5 (1) of the Act "includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction."
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 applicant was properly the subject of a risk assessment due to the provisions of clause 1(1)(b) of Schedule 1 of the Act which reads as follows: (1) Proceedings have been commenced against a person: (a) ….. (b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.
The offences with which the applicant was charged are offences specified in clause 1(1)(e) of Schedule 2 of the Act.
The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is also 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 the often cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order: "However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [33]. It is useful to set out the reasoning behind the Tribunal's determination in this decision.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.
The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
In the following paragraph the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, 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.
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.

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 is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.
Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act. In BVT v Office of the Children's Guardian [2016] NSWSC 1169, Adamson J found, however, in relation to an application for an enabling order under section 28 of the Act, that it was an error to interpret the plea of guilty in that case to findings of the Court and admissions of the applicant, at [58]: "[58] The Tribunal was not bound by the laws of evidence: s 38 of the NCAT Act. It was therefore entitled to take into account the contents of the documents produced by the District Court, including: the plaintiff's record of interview; the witness statements; and the police facts, although the witness statements and police facts would not have been admissible as evidence under the Evidence Act 1995 (NSW). If that is what the Tribunal had done in the present case, there could have been no proper grounds for complaint. However, by elevating the matters in these documents to the status of findings by the sentencing judge and admissions made by the plaintiff, the Tribunal misapprehended the legal effect of the plaintiff's plea."

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 is not a disqualified person. The charges pursuant to sections 61L and 61I of the Crimes Act 1900 (NSW) are serious charges. The charges render a convicted person liable respectively to a maximum of 5 years and 14 years imprisonment. The applicant was not convicted of those charges. The applicant was found guilty of common assault under section 61 of the Crimes Act.
The purpose of the risk assessment is protective of children and not punitive of the applicant, as earlier stated. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The offences with which the applicant was charged and later acquitted are matters sufficient to cause the risk assessment. The legislature has classified certain behaviour which results in criminal charges (irrespective of the outcome of those charges) as sufficient to render the applicant for a clearance subject to a risk assessment. That proscribed behaviour does not always relate to allegations involving child victims and may also relate to aggravated cruelty to animals. It is obvious that the types of offences listed in Schedule 1 of the Act generally involve a sexual element or some aspect of violation of the personal integrity of another person or serious harm to a living creature. The assessment trigger is also activated where 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 Schedule 1 or Schedule 2 of the Act) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children. The seriousness of the conduct is relevant to the risk assessment.
The applicant was charged with sexual intercourse without consent and 4 counts of assault with acts of indecency as well as common assault. The incident giving rise to the charges occurred on 16 March 2013 at approximately 1 am while the victim was asleep. The applicant and the victim resided in shared accommodation provided by their common employer. The applicant entered the victim's bedroom and sat astride her as she was sleeping. The applicant repeatedly asked the victim why it was that she had poisoned him and why it was that she was speaking badly about him to friends. The victim asked the applicant to get off her but the applicant would not get off her until she started to cry. The victim attempted to use her mobile phone which the applicant then removed from her. The victim struggled with the applicant and was able to get off her bed. During the course of the struggle it was alleged that the applicant touched the victim's breast on three occasions underneath her pyjama top and touched her on the groin area before inserting his fingers into her vagina. The victim asked the applicant to stop and he refused to let her stand up until she stopped crying. When the victim did stop crying she was allowed by the applicant to go from the hallway to where the struggle had moved, back to her room where she contacted police.
The applicant has denied any form of sexual or indecent assault on the victim and maintains that he had a relationship with the victim which went beyond mere friendship. During the criminal trial many of the text messages that were exchanged between the applicant and the victim were admitted into evidence. The applicant agrees that he went into the victim's room in the early hours of the morning to speak to her about the meal which made him ill. The applicant says he had previously been into the victim's room. The applicant admits that he sat astride the victim, removed her mobile phone and tried to stop her from leaving the room. The applicant says that he understands the victim would not have been comfortable with his conduct.
The applicant was interviewed by the police and made admissions to straddling the victim, taking her phone from her to prevent her contacting help and attempting to restrain her from leaving the bedroom, which caused the victim fall over in the hallway. The applicant told the police in his record of interview that he initially spoke to the victim on the telephone but they couldn't hear each other properly so she came to the sitting room: Exhibit R4 p202, Q159. The applicant agreed that the victim bit him on the hand. The applicant denied in the police interview touching the victim on her breast under her top and denied inserting his fingers into her vagina. The applicant stated to the police that the victim was not wearing a bra. The applicant agreed that he may have inadvertently touched the victim on the breasts while attempting to restrain her, and his hands may have been near her beltline while he was attempting to restrain her in the hallway to where the struggle between them had moved. The applicant said that he was the boyfriend of the victim but they were not sexual partners.
In her statement to the police victim reported that she went to bed reading a book when the applicant telephoned her asking her "Why do you say the things you do?... Why have you said bad things about me?"
The victim said she apologised and said that she had not said anything bad. The victim said she fell asleep reading the book woke up with the applicant sitting on top of her. The applicant accused her of poisoning him. The victim asked him to get off her and he refused until she cried which she did. The victim said that she bit his left hand and pushed him away. The applicant grabbed her breasts. The applicant pushed her onto the corridor floor where he was touching and sucking her left breast. The applicant then forced her into the lounge room when he touched her breasts and inserted his fingers into her genitals causing pain. The victim told the applicant that he was hurting her and asked him to stop. He was lying on top of her and she told him to get off because she wanted to go to sleep. Eventually he got off her and verbally abused her and allowed her to return to the room from where she made a '000' telephone call to the police. The transcript of that call is contained within the exhibit. The victim had difficulty conveying to the operator the exact address and was speaking softly so that the operator had to ask her to speak up. The victim persevered with the call and gave detailed instructions as to the location of the premises.
Upon initial medical examination there were no obvious injuries or complaints of pain. This is not inconsistent with painful insertion of fingers according to the forensic medical opinion in the police brief.
The victim undertook a sexual assault examination and spoke to a sexual assault counsellor. The victim was concerned in relation to bringing any proceedings which she believed would have created repercussions to her family if the applicant was convicted.
The victim underwent forensic medical testing including DNA testing of her vulva, lips and left breast. A certificate of expert evidence recording the results of that procedure is in Exhibit R4 at pages 174-182. The male DNA recovered from the victim's vulva matches that of the applicant and is expected to match all males in his paternal line and the profile is expected to occur in approximately 1 in 750 unrelated individuals in the general population. The DNA recovered from the victim's lips originated from at least 2 individuals the major component of which came from the victim. The DNA recovered from the left breast originated from 2 individuals one of whom was determined to be male but was too weak to determine an individual profile. The expert was cross-examined in the trial and the transcript is in evidence. Not all the transcript, however, has been adduced in evidence before the Tribunal.
The victim was granted an Apprehended Violence Order, sought by the police on her behalf due to the victim's concerns which were established to the relevant standard, that is, on the balance of probabilities.
The Tribunal was not informed whether the victim was required by the applicant for cross-examination. There was no application to have the victim made available for any further cross-examination about matters which presumably she had already been confronted with when she gave evidence in the criminal matter. There is transcript of the victim's cross-examination in the criminal trial in the exhibit before the Tribunal.
The victim was aged 24 years and the applicant was aged 31 years at the time of the incident which led to the charges against the applicant. While neither person was young and immature, the applicant was sufficiently mature to be able to appreciate that what he did was not acceptable behaviour.
The evidence given in the jury trial by the applicant is not complete. The applicant's evidence in chief and about the beginning of this incident is in Exhibit R4 at page 451 and completing on page 454 while he was still giving his evidence. The most relevant part of his evidence is not to be seen in the transcript provided.
The applicant was found not guilty by verdict of the offences involving an indecent or sexual element. The applicant was, however, found guilty of common assault in relation to the same incident. The applicant received a section 10 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 9 months. The maximum sentence for that offence is two years imprisonment. That is a serious offence in relation to the assessment of risk that the applicant may pose to the safety, welfare and wellbeing of children. The sentence reflects the matters referred to in the relevant sentencing provision. The sentence is not an assessment of the risk (if any) the applicant may pose to children.
If the applicant and the victim were in such an intimate relationship as contended by the applicant, the behaviour of the applicant is not explained by that fact. The fact that the applicant and victim may have had, at some point prior to the incident, an intimate relationship does not lessen the seriousness of the conduct of the applicant. The evidence relied upon by the applicant to establish that relationship does not establish that the matters complained of by the victim did not occur. The evidence gives a context. The finding of 'not guilty' simply reflects the fact that the prosecution could not prove beyond reasonable doubt that the applicant behaved as contended in the criminal trial.
The remarks on sentence on 25 August 2015 produced to the Tribunal are: "Under s10 of the Crimes(S.P.) Act 1999, without proceeding to a conviction, but having regard to the trivial nature of the offence I am satisfied that it is expedient to release the offender on a good behaviour bond. I order the offender be released on a good behaviour bond for a period of 9 months from today. Conditions of the Bond are as follows: (1) Appear before the court if called upon to do so at any time during the term of the bond; (2) To be of good behaviour."
It was submitted on behalf of the applicant that the assault should be "seen through the prism of a pre-existing intimate relationship". It was also submitted that whilst "the conduct constituted an offence and would not be tolerated by the Australian community the conduct properly characterised is towards the lower end of the scale of common assaults." The sentence imposed upon the applicant is not the lowest end of the metaphorical 'scale' because the judge could have simply made an order directing that the charge be dismissed pursuant to section 10 of the Crimes (Sentencing Procedure) Act.
Dr Banks provided a psychological assessment for the purposes of the application. Dr Banks also gave oral evidence. The presumptions which allowed the applicant to enter the victim's room, to straddle her and remove her phone are completely unjustifiable according to Dr Banks oral evidence, and Dr Banks assesses that the applicant has a growing insight into that situation but has not yet arrived at that 'destination'. In other words, it is Dr Banks' assessment as expressed to the Tribunal that the applicant has some further self-development to undertake in order to achieve adequate insight into the unacceptable behaviour. Dr Banks report is referred to in more detail later in these reasons.

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

The time which has elapsed since the incident is now approximately 3 years. The applicant was 'convicted' of common assault on 25 August 2014.
The applicant has not been the subject of any sustained criminal or other complaints of a sexual nature since the incident occurred.
The applicant has engaged in employment since the incident.
The applicant has enrolled in a course conducted by Relationships Australia called "Taking Responsibility-A Course for Men". This course had at the time of hearing not yet commenced.

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

The applicant was 31 years old at the time of the offences for which he was charged and subsequently acquitted. The applicant when he was 33 years of age received a section 10 bond under the Crimes (Sentencing Procedure) Act for a period of 9 months for the offence of common assault.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

The victim was aged 24 at the time of the incident. The victim was vulnerable due to the fact that she was sleeping. The victim was in her own bed and the applicant entered the bedroom without her consent.
The victim was rudely awakened by the applicant straddling her and asking questions. The applicant physically restrained the victim and stopped her from using her mobile phone to telephone for assistance. The applicant says that the victim and he had an intimate relationship prior to the incident.

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

The difference in age between the applicant and the victim is 7 years.
The victim was known to the applicant through their work together.
The applicant and the victim had been friends and the applicant stated that he considered the victim his girlfriend.

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

The applicant knew that the victim was not a child.

The person's present age

The applicant is currently aged 35.

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

The applicant has no relevant criminal history other than the matters previously referred to which resulted in the risk assessment.
The applicant arrived in Australia in 2011 and became a permanent resident in 2015. The applicant now resides with his parents and his wife at their home which is also occupied by his two brothers one of whom is aged 30 and the other is aged 23, both of whom are single and have no children. The applicant and his wife have one child aged 9 and are guardians of two other children aged 5 and 8 years of age. All three of the children reside with the applicant's mother-in-law in a different country than Australia. That biological child was therefore born in about 2007. The applicant was married to the mother of that child on a date not disclosed in the evidence. The applicant gave oral evidence that there was a breakup in the relationship when he came to Australia in 2011. It was described orally as more of a divorce.
The applicant told police in his record of interview that he had no dependents or children: Exhibit R4 p193, Q29. This is not entirely accurate. There may have been a misunderstanding due to the fact that the applicant's first language is not English.
The applicant completed a Master of Accounting in 2013.
The respondent relies upon the charged offences being characterised as serious offences. The 'conviction' also relates to a serious offence.
The respondent submits that the applicant has failed to demonstrate any insight into his offending, or any insight into the effect his offending had on the victim. The respondent also submits that the applicant has not shown any empathy towards the victim for what she experienced.
The applicant has referred in his statutory declarations contained in Exhibit R1 to the fact that he has undertaken counselling with his pastor "as a way to avoid future incidents like this". The applicant says that he has increased his frequency of attendance at church and attends relationship workshops, also conducted by or at the church. The applicant says that he has read books on how to become a better person. The applicant also says that if he had considered the victim's feelings when he answered his telephone and later went into her bedroom he wouldn't be in this situation.

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

The respondent submits that the applicant is a risk to the safety of vulnerable young persons, including children, based upon the applicant's lack of insight into the effect his behaviour has had upon the victim, the significance of his behaviour, and the inappropriateness of that behaviour. The applicant has minimised the seriousness of the matters which resulted in the risk assessment. The applicant considers that the incident has resulted from a "misunderstanding with a girlfriend". Clearly, there was more than a misunderstanding because the victim made a complaint to the police. It was submitted on behalf of the applicant that this phrase was merely an "ineloquent manner of expression by a person who speaks English as a second language" and should not be construed as a demonstration of lack of insight or lack of empathy for the victim.
A conviction upon any one of the matters of which the applicant was found not guilty by verdict would have resulted in the applicant being classified as a disqualified person who then cannot work with children without the subsequent grant of an enabling order.
The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the conduct of the applicant independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.
The applicant relies upon the evidence of his pastor. The pastor was cross-examined during the hearing. The pastor provided a character reference stating that he knew the applicant for a period of 4 years. Between January 2014 and August 2014 the applicant told the pastor about his court case and the alleged offences. The social group within the church in which the applicant is currently involved is according to the pastor a men only group which shares "ideas on issues that affect man, support each other emotionally, engage in social activities, and teaches man to be a good head of family, thus in a biblical perspective."
The applicant has not undertaken any sex offenders' courses or accredited counselling in respect to the alleged offences or the common assault matter. The applicant has not undertaken any relevant counselling other than that with his pastor or provided evidence of that counselling if it has occurred, addressing his self-development.
The applicant has minimised his role. The applicant said he thought that the matter had been "settled" with the victim after their "scuffle" and was surprised when the police arrived and he was informed that the victim complained of a sexual assault.
The applicant considered that he and the victim were in an intimate relationship and stated in his statutory declaration dated 6 October 2015 that he had been standing behind the victim with his arms around her when they were about to touch each other intimately, by him putting his hands down her pants, when his phone rang. The applicant answered the call which lasted for about 30 minutes and the victim went to bed and to sleep before he finished the phone call. The applicant surmised that the priority given by him to the telephone call made the victim angry.
The applicant stated that he produced evidence in the criminal court that included text messages to prove that the applicant and the victim were in an intimate relationship which included touching each other in a sexual manner.
The victim described to police earlier incidents of physical violence and attempts by the applicant to direct or control her behaviour by restraining her to extract from her what he wanted, on one particular occasion a hug goodbye. The victim disputed that the applicant and she were in an intimate relationship.
The applicant has consulted with his pastor. As a result of the consultation the applicant says in his Statutory Declaration dated 10 November 2015, he has been taught "about the importance of understanding a girlfriend and knowing their mood swings" and behaviour which "could be right back home would not necessarily be accepted in Australia."
The applicant clearly had a feeling of entitlement to confront the victim whilst she was asleep in her own bedroom. The applicant said in his statutory declaration that he respects other people's rights which is not borne out by his actions on that occasion. The applicant also said that he has never behaved improperly with children. There is no allegation that he has. The question is whether he poses a real and appreciable risk to children.
The applicant has also said that the victim is to blame because she was ignorant of the "laws of the Territory" and could not wilfully report and then withdraw a case without any implications. The applicant says the victim wanted him to come back to her after the incident but he waited for the matter to be determined in the criminal proceedings. The applicant says the allegations were not genuine. However, this blithely and blindly disregards the outcome in relation to common assault.
The applicant has also stated that he has learned his lesson and would not risk any behaviour which might tarnish his reputation particularly working with children in his chosen career path. Regrettably, the applicant appears not to have gained any insight into his offending behaviour particularly the effect that it had upon the victim and has expressed minimal empathy with the position of the victim. The applicant simply acknowledges that the victim would not have been comfortable with his conduct. The applicant is clearly concerned with the effect of this incident upon his chosen career path. This is a factor to which the Tribunal has sympathetic regard but is one which is not the paramount concern with which the Tribunal is charged.
The applicant told the psychologist, Dr Banks, that the victim told him that she had put food which he wanted down her pants "so I put my hand down her pants" as part of what was described as 'consensual play' between them. The applicant told Dr Banks that the mobile telephone rang and he left the victim to attend to the call for approximately 30 minutes. This is the point in the narrative where the applicant's transcript of evidence in the criminal trial finished. When he returned to the victim, she stated that she was going to bed. The applicant then told Dr Banks that he became ill for the next few hours. The incident which led to the charges then occurred and afterwards the applicant insisted that the victim sit with him in the living room so they could resolve some of their disagreements. Dr Banks opined at [10]: "…however it was apparent that he had remained somewhat emotionally unattuned to her and remained focused on what he wanted to discuss."
The applicant told his pastor that he grabbed the victim by her shoulders. The applicant told the pastor that the applicant thought the victim had poisoned him. The pastor was surprised to hear that the applicant had sat on the victim. The pastor took the applicant "at his word". The Pastor said in his oral evidence that he did not provide counselling to the applicant but discussed spiritual matters with him if there was anything troubling him.
Dr Banks assessed at [27], that the interaction between the pastor and the applicant would appear to "have focused on his 'adultery and sins', and with less emphasis on assertive skills training, social skills training, and strategies to assist [the applicant] manage his emotions when he experiences stress, confrontation or anger, particularly in personal relationships."
The applicant was assessed by Dr Banks in terms of his psychological functioning. The applicant engaged in significant effort to portray a positive impression of himself throughout the interview with Dr Banks (at [31]). It was assessed by Dr Banks that "[i]ndividuals with similar profiles to the applicant tend to be restrained and generally well socialised, but when they experience problems, they lack insight to deal with them and appear rigid." Dr Banks observed this was consistent with the applicant's rigidity of thought and persistence towards the victim.
Additional psychological assessment was performed which suggested the applicant (at [31]): "…has a well-established need for social approval and commendation, evident in tendencies to present himself in a favourable light"
and the applicant "…demonstrated a general naiveté about psychological matters, including reduced insight into [the applicant's] own behaviours."
Other aspects of his personality established by peer reviewed and generally accepted psychological tools [1] administered by Dr Banks (at [34]) are that: "surges of anger may break through his facade of propriety" with each submission to others, due to periodic displays of suspicion, compulsivity and mistrust about others. The applicant is likely to become preoccupied with suspiciousness regarding proof of duplicity or conspiratorial intent, picks up on minute cues, then magnifies and distorts them so as to confirm his worst expectations, as the applicant did with the victim in this matter. Additionally, the applicant has the personality of an individual who becomes defensive and rigid of thought when confronted or when he feels threatened in the context of personal relationships. According to Dr Banks (at [35]) it would appear that the applicant then "experiences difficulties with conflict resolution skills, becomes less emotionally attuned, and demonstrates greater rigidity, resulting in greater conflict in his personal relationships."
It is Dr Banks' assessment (at [36]) that the applicant "does not currently present sexual or physical risk to children or adults in his work settings." The applicant is said not to pose such a risk in his work environment but could benefit from improving his personal relationships and communication. Of course, the protection of children from abuse encompasses more than the threat of simply physical or sexual abuse. The assessment of that risk of abuse is based upon a multitude of factors. Dr Banks has based his assessment upon reports from the applicant's employers that the applicant is reported to be able to communicate effectively and respectfully in his work settings. The victim was a co-worker and a person with whom the applicant resided in accommodation provided by the employer. The applicant was unable to maintain appropriate boundaries between his professional obligations and his personal desires by invading the victim's personal sphere. Dr Banks assesses that the victim was likely to have denied and misrepresented the nature of the relationship with the applicant because of cultural and religious factors. Dr Banks also said that those factors do not diminish the applicant's behaviours which were acknowledged by the applicant to Dr Banks to be confrontational, rigid and dismissive, although explicable based on gender and cultural antecedents. Dr Banks states at [40]: "It is submitted that [the applicant] does not pose a risk in his work environment, although he could still benefit from improving his interpersonal relationships and communication. It would appear that [the applicant] has demonstrated motivation for change. He reported having attended sessions with [the pastor] by his own volition, though it is noted that the sessions have not focused on his behaviours in interpersonal relationships."
The respondent submits that the applicant has problems with conflict resolution, bodily integrity, particularly in relation to young women, and anger management which necessarily poses a risk to others including children. In light of the deficits in the applicant's personality and psychological functioning identified by Dr Banks there is more than superficial attraction to this submission. The applicant did not perceive his misuse of force and physical strength upon the victim as "problematic" but said to Dr Banks that he would not do that again to "friends, partners or anyone in the future": at [38]. The recommendation of Dr Banks that the applicant should undertake further personal development does not provide a great deal of confidence that the applicant currently has the skills to avoid similar reactions in the future.
The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 at [67] and BKV v Children's Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children's Guardian [2016] NSWCATAD 3 at [91]-[92].
In essence, expert witnesses in this Tribunal have stated that prediction of a relatively uncommon behaviour such as sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and "gut feeling" play a determinative role in making a judgment.
The applicant was found guilty of common assault in relation to the incident. The applicant received a section 10 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 9 months. The Act in section 5 defines conviction as including "a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction". That is what happened in this matter. Because the applicant has been 'convicted' of one offence of violence, in terms of the Act, actuarial risk assessments are applicable in only a limited way, if at all, but only in relation to the assault conviction and not in relation to the allegations of sexual impropriety because there are no convictions in relation to sexual matters.
Of course, as previously observed, the standard of proof in criminal matters is proof 'beyond reasonable doubt'. The civil standard is not the same and is on the balance of probabilities.
The applicant has seen Dr Gary Banks, as previously identified, for the purposes of the preparation of an expert psychological assessment. The Tribunal has regard to that assessment and is not confident that the applicant has understood the extent of the deficits identified in that assessment and their impact upon his ability to be a safe and protective ally to children with whom he may come into contact in a voluntary or paid capacity.
The factors which are identified by the applicant as protective against the applicant's future risk of physical, sexual or abusive offending are his desire to remain conviction free, maintain a good reputation and continue with his career. However, what is really required to be undertaken as identified by the expert evidence is assertive skills training, social skills training, and strategies to assist the applicant manage his emotions when he experiences stress, confrontation or anger, particularly in personal relationships. The fact that the applicant did not perceive his misuse of force and physical strength upon the victim as beyond the accepted boundaries of his relationship with her is a significant concern. It is apparent that the applicant has problems with conflict resolution, bodily integrity, particularly in relation to young women, and anger management which necessarily poses a risk to others including children. It is to be remembered that the work which has been undertaken by the applicant and is proposed in the future involves bathing, toileting and feeding people including children under the age of 18 years in a position of trust and where the vulnerable clients and patients are dependent upon the applicant's ability to control his behaviours.
The applicant generally has reduced insight into his own behaviours as identified by Dr Banks. In order to guard against the problematic aspects of his personality the applicant requires more insight than he has demonstrated to date.
Having regard to all the circumstances recited in these reasons, the Tribunal finds on the balance of probabilities that the events described by the victim to the police and the subject of evidence from the victim during the criminal trial occurred. This includes the sexualised behaviours which were reported by the victim, although the finding of guilt in relation to the physical assault is sufficient to find that the out of control and excessive behaviour of the applicant is a real and appreciable risk to the safety, welfare and well-being of children. The applicant has agreed with many of the relevant factual matters which provide the context of the assault and the pursuit of the victim by the applicant during which his sexualised behaviours progressed beyond mere touching earlier referred to in the evidence. The exchanges of messages referred to by the applicant show an intimate relationship and identify the development of the close relationship with his co-worker, which was a progression of sexualised banter and touching, which then in turn escalated to the events of the incident. The DNA evidence was not sufficiently precise to avoid a reasonable doubt, due in large part to the possibility of contamination by the close proximity in which the victim and the applicant lived, but that evidence assists in determining the events on the balance of probabilities. That DNA evidence is consistent with the report of the victim.
The Tribunal finds that there is an unacceptable risk of harm posed by the applicant to children having regard to all the circumstances referred to in the preceding paragraphs. The Tribunal cannot accurately predict whether the conduct of the applicant will be repeated. The evidence from the applicant is not persuasive that there is minimal or no risk of repetition. If it is repeated behaviour the impact on children with whom the applicant works is likely to be significant and adverse to their healthy development.
The applicant has not shown any real insight into the psychological and emotional impact on the victim. Instead, the applicant appears preoccupied with the psychological and emotional effect on him and his career.

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

The applicant has provided information including his statutory declarations and affidavit from his solicitor and the reference from his pastor. The applicant also relies upon the report of Dr Banks. The applicant relies on the psychologist's risk assessment.
The Children's Guardian has not submitted that the applicant has failed to provide relevant information.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
The Children's Guardian submits that the applicant should not be granted a working with children check clearance and the application for review should be dismissed.
The respondent submits that a real and appreciable risk to the safety of children is present.

Consideration

The behaviour and conduct which triggered this assessment is a serious matter. The Tribunal is satisfied that the evidence shows the behaviour and conduct of the applicant was physically threatening and invasive of the victim's rights.
The applicant has stated that he will not behave inappropriately again in the future and is apparently genuinely motivated to keep out of trouble. The difficulty in accepting that the actions will match the ambition is the lack of insight and the current absence of requisite skills to prevent future control of the applicant's behaviour. The applicant has denied behaving in a sexually abusive way towards the victim. The applicant was found not guilty of the indecent and sexual assaults. The comments about the applicant putting his hands down the pants of the victim prior to the incident and immediately before receiving the phone call as recorded in various versions including the transcript at trial, does not easily reconcile with his denial that any sexual behaviour later occurred.
The applicant lacks assertive skills training, social skills training, and strategies to assist the applicant to manage his emotions when he experiences stress, confrontation or anger, particularly in personal relationships. The applicant does not seem to perceive his misuse of force and physical strength upon the victim as beyond the accepted boundaries of his relationship with her. The applicant has on the evidence before the Tribunal problems with conflict resolution, bodily integrity, particularly in relation to young women, and anger management which necessarily poses a risk to others including children.
The Act is designed to be protective and the Minister's second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk. The behaviour of the applicant was beyond reasonable community norms, was unplanned, but was part of a pattern of ongoing or escalating events. The psychological explanation for this escalation is provided by Dr Banks' assessment of the applicant. The legislature has proscribed behaviour which results in criminal charges and classified it as sufficient to render the applicant for a clearance subject to a risk assessment. That behaviour does not have to involve allegations about child victims. It is clear that offences listed in Schedule 1 of the Act involve a sexual element or some aspect of violation of the personal integrity of another person or serious harm to a living creature. The assessment trigger is activated where a person has been 'convicted' of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct sufficient to indicate a pattern of behaviour which is deemed a possible risk to the safety of children. The seriousness of the conduct is a particularly relevant factor to the risk assessment but is not the only consideration.
The behaviour is relatively recent, and the behaviour, if repeated, would do significant harm. Mitigating factors are considered previously, but genuine and sustained effort to remedy the conduct and past behaviour is not present. Remorse on its own is not considered to be a factor that mitigates risk.
Until there is an acknowledgement of the extent of the applicant's behaviour and appropriate action taken to address the causes of the behaviour, there remains an unacceptable risk of repetition of the behaviour. This is a well-recognised aspect of risk assessment particularly in relation to the risk to vulnerable children who may not be able to articulate the boundary violations which conceivably and realistically can occur in the type of work the applicant wishes to perform. While this application is far removed from unexplained injuries to children, the principles which are relevant in assessing the likelihood of repetition of abusive behaviour are instructive: see T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985, page 18; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124. A conscious understanding of the causes and the ability to address the risk of further threatening behaviours expressing the underlying psychological issues identified in Dr Banks report, is necessary for the applicant to avoid the appreciable risk of a repetition of the conduct that led to criminal charges and the finding of guilt in relation to the assault.
A comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the conduct, achieved in accordance with fair processes appropriate to and adopted by the Tribunal is the key plank in the determination of the factual issue before the Tribunal.
There is a comfortable level of satisfaction that the events described by the victim to the police and the subject of evidence from the victim during the criminal trial, including the sexualised behaviours which were reported by the victim, occurred on the balance of probabilities. The finding of guilt in relation to the physical assault is sufficient to find that the out of control and excessive behaviour of the applicant, is an aspect of behaviour which is a real and appreciable risk to the safety, welfare and well-being of children. The essential element of the assault is the perception by the victim of the imminent threat to her safety.
The behaviour, if repeated, while working with children would be more likely than not to do significant harm to children. The applicant poses an unacceptable risk of harm to the safety welfare and well-being of children.
The applicant has identified factors which mitigate in his favour. The applicant has been able to maintain a clear record since the incident and is generally a law abiding person.
The applicant has not acknowledged or shown any developed insight into the effects of his conduct. The applicant has shown remorse. Remorse on its own is insufficient to ameliorate risk.
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.

Conclusion

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.
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]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. 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: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
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.
The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
It is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant that the existence of a real and appreciable risk to children has not been disproven: see BKE v Office of the Children's Guardian [2015] NSWSC 523 at [33].
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. The decision of the Children's Guardian should therefore be affirmed.

Order

The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 16 November 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is affirmed.

Endnote

Paulhus Deception Scale (PDS) and Millon Clinical Multiaxial Inventory- Third Revision (MCMI-III) 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: 15 September 2016

Crimes (Sentencing and Procedure) Act 1999(NSW)

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

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Legislation Cited (9)

Cases Cited (50)