CHI v Children's Guardian

Background

1. In May 1993, the applicant was convicted of an offence of assault on a person under the age of 16 years with an act of indecency, contrary to s 61E of the Crimes Act 1900 (NSW). The offence was committed in September 1991 and the victim was a 12-year-old boy. The applicant was 43 years of age at the time. He pleaded guilty to the offence and was sentenced to a fixed term of imprisonment for five months.
2. In March 1994, the applicant was convicted of an offence of an act of indecency towards a person under the age of 16 years, contrary to s 61N of the Crimes Act. The victim was a 13 year-old child. The Court deferred sentencing the applicant on the condition he entered a good behaviour bond to be of good behaviour for two years.
3. On 14 October 2015, the applicant applied to the respondent, under s 13 of the WWC Act, for a working with children check clearance. On 30 October 2015, the respondent determined to refuse the applicant's application under subs 18(1)(a) of the WWC Act because he was a "disqualified person". On the same day, the respondent notified the applicant of her decision and that he had a right of appeal to the Tribunal under Part 4 of the WWC Act.
4. On 27 October 2015, the applicant lodged his application for an enabling order under s 28 of the WWC Act.

The legislative scheme

1. The WWC Act came into operation on 15 June 2013. The object of the Act is set out in section 3 which provides: "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."
2. Section 4 of the WWC Act provides that "the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
3. Subs 8(1) of the WWC Act prohibits a person from engaging in "child-related work", unless: 1. the person holds the relevant working with children check clearance, or 2. there is a current application, by the person, to the respondent for the relevant working with children check clearance.
4. Subs 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
5. Sections 6 and 7 define what is meant by "child-related work." It is broadly defined in these sections and includes work that involves direct contact (i.e. physical contact or face to face contact) by the worker with children in specified child-related work and child-related roles.
6. A "worker" is defined in s 5(1) of the WWC Act to mean: " … any person who is engaged in work in any of the following capacities: (a) as an employee, (b) as a self-employed person or as a contractor or subcontractor, (c) as a volunteer, (d) as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience),"
7. Section 13 provides that applications for a working with children check clearance (a clearance) are to be made to the respondent.
8. Section 18 prescribes how the respondent is to determine an application for a clearance. That section provides as follows: "18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3."
9. Accordingly, there are two grounds in which the respondent must refuse an application for a clearance; namely: 1. where an applicant for a clearance is a disqualified person; and 2. where the respondent is satisfied an, who is subject to a risk assessment, poses a risk to the safety of children. Section 14 provides: "A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person." Section 15 provides that the respondent is to conduct such a risk assessment and subs 15(4) sets out the matters the respondent may take into account when conducting the risk assessment.
10. There is no dispute the applicant is a "disqualified person" and the respondent refused his application for a clearance under subs 18(1)(a). In this regard the offences of which the applicant was convicted (i.e. ss 61E and 61N of the Crimes Act) are offences specified in cl 1(1)(d) and (e) of Sch 2 of the WWC Act.
11. Part 4 of the WWC Act contains provisions in relation to reviews and appeals to the Tribunal from decisions of the respondent to refuse a person's application for a clearance. Section 28 makes provision for "disqualified persons", who have had their application for a clearance refused by the respondent, to make an application to the Tribunal under Part 4. That section relevantly provides "28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) … (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. … (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions."
12. Section 27, in Part 4, makes provision for persons, other than disqualified persons, who have had their application for a clearance refused by the respondent, to make an application for administrative to the Tribunal. 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) …"
13. Section 30 of the WWC Act sets out the matters the Tribunal must consider when determining an application under Part 4 of the WWC Act (i.e. an application under ss 27 and 28).
14. However, the right to make an application to the Tribunal under Part 4 is subject to the prohibition contained in s 26 of the WWC Act. At the time the applicant made his application to the respondent for a clearance and when the respondent made her decision to refuse his application, that section provided: "26 No appeal in certain cases A person may not make an application under this Part: (a) if the person has been convicted of the murder of a child, or (b) if the person's application for a working with children check clearance has been refused wholly or partly on the grounds that the person has been charged with an offence and proceedings related to that offence have not been finally determined."
15. At the time the applicant had made his application to the Tribunal, the above section 26 was omitted and the amended s 26, as contained in cl 30 of Sch 2 of the 2015 Amendment Act, had come into force.
16. The 2015 Amendment Act was assented to on 28 September 2015 and the provisions of the Act, other than those in cl 14 and cl 46 of Sch 2 came into force on 2 November 2015. Clause 14 and 46 came into force on 15 October 2015.
17. The amended s 26 relevantly provides as follows: "26 Persons not entitled to apply for review or enabling order (1) The following persons are not entitled to make an application under this Part: (a) a person who has been convicted of any of the following offences, if the offence was committed as an adult and the person is a person who satisfies subsection (2): (i) murder, (ii) an offence against section 61B, 61C, 61D, 61E, 61F, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 61P, 63, 65A, 66, 66F, 76, 78A, 78B, 80A, 80D, 80E or 81 of the Crimes Act 1900, if the person against whom the offence was committed was a child, (iii) … (b) … (2) A person convicted of an offence specified in subsection (1) satisfies this subsection if: (a) the person received a sentence of full time custody for the offence, or (b) any of the following orders was imposed on the person in respect of the offence and the order is in force: (i) a home detention order, intensive correction order or community service order under the Crimes (Sentencing Procedure) Act 1999, a good behaviour order under section 9 of that Act or an order under section 12 of that Act, (ii) a conditional release order or recognizance release order under section 20 of the Crimes Act 1914 of the Commonwealth, or (c) a prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 is in force against the person. (3) This section applies to convictions for offences whether occurring before, on or after the commencement of this Act". (bold added)
18. As I have noted at [7] above, cl [46] of Schedule 2 of the 2015 Amendment Act contained savings and transitional provisions as a consequence of the amendments to the WWC Act made by the Amendment Act. The relevant provision in regard to the amended s 26 being cl 13 which I have also set out in full, at [7] above.

Does the amended s 26 apply to the applicant?

1. As pointed out by the respondent, it is the applicant's May 1993 conviction which falls within the terms of the amended subs 26(1)(a)(ii) in that: 1. it was a conviction for an offence, 61E of the Crimes Act, which is listed in subs 26(1)(a)(ii), 2. the applicant was an adult at the time he committed the offence, 3. the person against whom the offence was committed was a child, and 4. the applicant received a sentence of full time custody for the offence.
2. The applicant's March 1994 conviction, does not fall within the amended subs 26(1)(a)(ii), because he did not receive a sentence of full time custody, or made subject to orders under the Crimes (Sentencing Procedure) Act 1999. It is nevertheless a conviction for a disqualifying offence listed in Sch 2.
3. The respondent contends that the amended s 26 applies to the applicant's circumstances because the respondent had finally determined his application for a clearance on 30 October 2015, which was prior to the commencement of that section. As I understand the respondent's submissions, it is contended that, on its proper construction, cl 19(1) provides that the omitted s 26 only continues to apply to a person, who prior to the commencement of the amended s 26, had made an application for a clearance and that application had not been withdrawn or finally determined by the respondent as at the date of the commencement of the amended section.
4. In this regard, the respondent argued that the word "application" in cl 19(1) should not be construed as having the same meaning as it was construed by the Tribunal in CGN v Children's Guardian [2016] NSWCATAD 138: see at [8] and [9]. At [9] the Tribunal said it "[f]ound that the transitional provisions contained in Schedule 3 have the effect that the amendments do not apply to an application made to the respondent before the amendments came into effect."
5. What was in issue in CGN was whether the amendment to s 30 of the WWC Act, as contained in cl 31 of Sch 2 of the 2015 Amendment Act, applied to the Tribunal's determination of CGN's application for review. The amendment inserted an additional requirement, subs 30(1A), the Tribunal was to have regard to when assessing a review application and an application for an enabling order. An amendment in the same terms was also inserted into s 15 of the WWC Act: see 2015 Amendment Act, Sch 2 cl 16. The relevant savings and transitional provision in regard to these amendments was cl 16 as contained in cl 46 of Schedule 2 of the 2015 Amendment Act. That clause provided that: "Sections 15 and 30, as amended by the amending Act, do not apply to an application that was made before that amendment."
6. The Tribunal's finding in CGN appears to have been made on the basis of the parties having submitted that the word "application" in cl 16 was a reference to an application for a clearance to the respondent (WWC Act, s 13) and an application to the Tribunal under ss 27 and 28.
7. The Tribunal also considered the proper construction of cl 16 in CHB v Children's Guardian [2016] NSWCATAD 214, at [108] to [125].
8. In CHB, at [115] and [116], the Tribunal made the following remarks in regard to the word "application": "115 There is a presumption, albeit one that is easily displaced, that the same meaning should be given to a word which is used consistently throughout a statute: Morgan v Davis (1962) 79 WN (NSW) 460 at 463 per Wallace J. Clauses 15 and 18 of Sch 3 also use the word "application" and it is clear from the context that the word refers to an application to the Children's Guardian for a working with children check clearance in those clauses. As clause 16 was enacted at the same time as clauses 15 and 18 and is proximate to them, there is a presumption that the word "application" has the same meaning in clause 16. 116 The word "application" in clause 16 could refer to an application for a clearance, both in the context of s 15 and in the context of s 30. Section 15 can only apply to an application for a clearance (and not to an application to the Tribunal). Section 30 can apply where a person has made an application for a clearance which has been refused by the Children's Guardian, that refusal being the subject of review by the Tribunal. Alternatively, the word "application" in clause 16 could refer both to an application for a clearance (in respect of s 15) and to an application to the Tribunal (in respect of s 30). "
9. At [117], the Tribunal went on to find that cl 16 did not apply to CHB as at the time the amendments to ss 15 and 30 came into force (i.e. 2 November 2016) the applicant did no have an application for a clearance pending determination by the respondent, or an application to the Tribunal under s 27 of the WWC Act.
10. However, the Tribunal went on to consider whether subs 30(1A) nevertheless applied because the respondent's position was that "[c]onsiderations of fairness militate against the retrospective operation of s 30(1A) of the Act because there is ambiguity in the meaning and application of cl 16 of Sch 3, there is a clear intention on the part of the legislature that the Act not have retrospective operation, and there exists a presumption against a statute operating retrospectively (Fisher v Hebburn Ltd (1960) 105 CLR 188, Fullagar J at 194)": see at [118].
11. At [124], the Tribunal rejected the respondent's argument. At [119] to [122], the Tribunal said the following in regard to the retrospective operation of an amending statute: "119 … [A] statute which provides that as at a past date the law shall be taken to have been that which it was not has a retrospective operation. However, the creation by statute of further particular rights or liabilities with respect to past matters or transactions does not make that statute retrospective: see Baker v R (2004) 223 CLR 513 at [30]; Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at 309 [57]; Minister for Immigration v Roberts [2011] FMCA 77 at [16]-[17]. 120 In La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Federal Court), an Act had been amended to create a power to cancel a fishing boat licence. The Minister cancelled the applicant's licence on the basis of a conviction which occurred before the new section came into existence, and the Administrative Appeals Tribunal upheld the cancellation. One ground of appeal to the Federal Court was that the power did not apply retrospectively, so it was impermissible to take into account a conviction which occurred before the power was created. The court found that the cancellation order did not have retrospective effect simply because it relied upon conduct that occurred before the power existed (see Toohey J at 26). 121 The change to the law made by s 30(1A) of the Act is, in our view, analogous to the change to the law made in the case of La Macchia. It altered the Tribunal's powers to cancel what is in effect a licence to work with children, just as the law in La Macchia created a power to cancel a licence. The insertion of s 30(1A) did not change rights or liabilities with effect prior to its commencement. 122 Nor are we persuaded that s 30 of the Interpretation Act 1987 (NSW), to which the respondent referred, applies in the present situation …"
12. In my view, s 30 of the Interpretation Act also has no application to the current matter. That section relevantly provides: "30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: … (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or …"
13. In Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291 and [2005] NSWCA, the Court of Appeal considered whether a statutory right to apply to the Industrial Relations Commission (IRC) in regard to an unfair work contract was an acquired or accrued right before an application was made. In that case, the claimant had commenced proceedings in the IRC in regard to an employment contract she had entered in March 2002 and which she claimed to have been an unfair work contract. The remuneration package of the contract exceeded $200,000. Section106 of the Industrial Relations Act 1996 (NSW) gave persons right to commence proceedings in the IRC in respect of an unfair work contract. However, in June 2002, the Act was amended with the insertion of subs 108A (1), which excluded contracts of employment with a remuneration package of more than $200,000 from the IRC's jurisdiction under s 106. The claimant did not commence proceedings in the IRC until 2004 - she claimed subs 108A(1) did not apply to her, because, at the time that subsection came into force she had an accrued right to commence the proceedings under s 106 and subs 30(1)(c) of the Interpretation Act preserved that right.
14. The Court of Appeal rejected this argument: see Colley at [31] to [35] (per Handley JA, with Mason P and Giles JA agreeing). It held that prior to making her application under s 106, the claimant merely had a right to take advantage of s 106 it was not until she actually made an application under that section that she accrued a legal right. That right being a right to have the IRC determine her application. As the claimant did not make an application prior to the commencement of subs 180A(1) she had no accrued right that was protected by subs 30(1)(c) of the Interpretation Act.
15. In my view, the same applies in the present application in that the applicant made his application for an enabling order after the amended s 26 had come into force.
16. Unlike the subs 108A(1) amendment to the Industrial Relations Act, the 2015 Amendment Act contains a savings provision, cl 19, in regard to the amendment of s 26 of the WWC Act. It is convenient to reiterate the terms of that provision: "19 Review and enabling order applications (1) Section 26, as in force before its substitution by the amending Act, continues to apply to a person who had made an application for a working with children check clearance which had not been withdrawn or finally determined before the commencement of the amending Act, but only in connection with matters arising out of that application. (2) Nothing in the amending Act affects any application made under Part 4 of this Act before the substitution of section 26 by the amending Act."
17. The respondent concedes that under the terms of cl 19(1), the omitted s 26 continues to apply to persons whose application for a clearance had not been withdrawn or "finally determined by the respondent", prior to 2 November 2015. It was argued that cl 19(2) supports a construction of this kind.
18. I am not persuaded by this argument for several reasons.
19. First, the underlying purpose of cl 19 is a savings provision in that its purpose is to provide for the continued operation of the omitted s 26 to existing and any future applications brought under Part 4 in respect of applications for a clearance that had not been "finally determined" or withdrawn as at the commencement date of the amended s 26.
20. Second, in its omitted and amended form, s 26 is of no relevance to the respondent's determination of an application for a clearance. It is only relevant to an application made under Part 4 of the WWC Act. An application under that Part can only be made after the respondent has determined to refuse an application for a clearance under subs 18(1) or (2). Hence, had Parliament intended the words "finally determined" in cl 19(1) to mean as determined by the respondent under subs 18(1) or (2), there would have been no need to include the words "finally determined." It would have sufficed to say "refused" or "determined by the respondent."
21. In my view, the words "finally determined" as they appear in cl 19, should be construed to mean finally determined under the provisions of the WWC Act.
22. When an application has been finally determined will depend on the circumstances surrounding a person's application for a clearance. Where the respondent has refused the person's application for a clearance under subs 18(1) or (2) and the person does not exercise any existing review or appeal rights under Part 4 of the WWC Act as a result of that refusal, the person's application for a clearance will have been finally determined as at the date of the respondent's determination to refuse the person's application. Subject to the omitted s 26 having no application to the person, where the person does exercise an existing right under Part 4 as a result of the respondent's refusal, that person's application for a clearance will not be finally determined until the Tribunal has determined the person's Part 4 application. In my view, the same applies to a person who has an existing right to bring an application under Part 4, following the respondent's refusal. That is, when that person's application for a clearance is finally determined will depend on whether the person does or does not exercise his/her right to make an application under Part 4. If he/she does not exercise that right, it will have been finally determined when the respondent refused the person's application. If the person does exercise his/her right to bring an application under Part 4 it will not be finally determined until the Tribunal determines his/her application. In my view, the same applies during the time a person's existing right to bring an application under Part 4 remains on foot and an election has not been made as to whether or not exercise that right.
23. The respondent's proposed construction of the words "finally determined" would be inconsistent with this and give rise to an anomaly in that there would be a distinction between those persons with a pending application for a clearance immediately prior to 2 November 2015 and who have a future right to make an application under Part 4 and those persons whose application has been refused by the respondent prior to 2 November and have an existing unexercised right to make an application under Part 4 immediately prior to 2 November 2015. Under the respondent's proposed construction the omitted s 26 will apply to person with a future right to make an application to make an application under Part 4, whereas those with an existing right to make such an application the amended s 26 will apply. In my view, this cannot have been the intent of cl 19 as it would preserve the right of future applications under Part 4 but not existing rights immediately prior to the amending provision came into force.
24. It is the latter circumstances that apply in the present matter in that, prior to 2 November 2015, the applicant had an existing right to bring an application under Part 4 and it was a right that had expired immediately prior to 2 November 2015 That is, his application for a clearance had not been finally determined as at the commencement of the amended s 26.
25. Accordingly, I find that the applicant's application for a clearance had not been final determined as at the date of the commencement of amended s 26.

Conclusions and orders

1. For the reasons set out above, I have found amended s 26 does not apply to the applicant. Hence he has standing to bring his application for an enabling order. As I have noted, the applicant is a "disqualified person" and he is presumed to pose a risk to the safety of children by reason of his 1993 and 1994 convictions, unless he proves the contrary.
2. It is not for me to determine his application. However, as the parties have filed and served their evidence, it is appropriate to set this matter down for a directions hearing so that the matter can be heard as soon as possible.
3. Accordingly, I make the following orders: 1. The Tribunal has jurisdiction to hear and determine the applicant's application. 2. The applicant's application is listed for Direction on 8 December 2016, at 11 am. 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: 24 November 2016