CLQ v Children's Guardian

The Evidence

1. At the hearing, the applicant relied upon the following material: 1. An Application Form filed on 24 February 2016 with attachments (Exhibit A1); 2. A bundle of documents filed on behalf of the applicant (Exhibit A2); and 3. The Applicant's Outline of Submissions filed on 26 May 2016 (Exhibit A3).
2. The applicant gave oral evidence in chief and was cross examined by Ms Stevens, Counsel for the Respondent.
3. Mr William Stone (Nurse Practitioner and Psychotherapist) also gave oral evidence for the applicant and was cross examined by Ms Stevens.
4. The respondent tendered into evidence the following material: 1. A bundle of documents filed on 8 April 2016 (Exhibit R1); 2. Further documents filed by the respondent on 6 June 2016 (Exhibit R2); 3. Submissions of the respondent filed on 16 June 2016 (Exhibit R3); and 4. A bundle of documents produced by Primary Mental Health in response to a summons dated 29 March 2016 (Exhibit R4).
5. There was no objection by either party to the receipt of this evidence by the Tribunal.

The Legislative Scheme

1. The Act makes provision for the regulation of those persons who can engage in or continue to engage in 'child related work'. The objects of the Act are: The object of this Act is to protect children: 1. by not permitting certain persons to engage in child-related work; and 2. by requiring persons engaged in child related work to having working with children check clearances.
2. Section 4 of the Act provides that the 'safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act.
3. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.
4. 'Children' is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word 'child' has the same meaning.
5. Subsection 8(1) of the Act prohibits a person from engaging in 'child related work' unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance. Contravention of this provision is an offence carrying a maximum penalty of 100 penalty points or imprisonment for two years or both.
6. The Act 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 WWCC clearance or there is no current application by the person for such a clearance.
7. As referred to above, subsection 18(1) of the Act states that the respondent must refuse an application for a clearance where the applicant is a disqualified person by reason of having been convicted of an offence within the meaning of Schedule 2 of the Act. The term 'conviction' is defined in subsection 5(1) of the Act to include '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'.
8. Section 22 of the Act provides that a WWCC clearance ceases to have effect five years after it was granted unless it is cancelled or suspended prior to that time (see section 23 of the Act).
9. As referred to above, a 'disqualified person' may make an application to the Tribunal for an enabling order. Where such an application is made, section 28 also provides: 28 Orders relating to disqualified and ineligible persons (1) … (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (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.
10. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said: One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…
11. These observations by Young CJ continued to be cited with approval by the former Administrative Decisions Tribunal in interpreting the meaning of 'risk' as it appeared in subsection 33J(1) of repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No. 2) 2014 NSWCAT 164 at [33] before this Tribunal.

Onus of proof

1. It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children: section 28(7) of the Act. The standard of proof applied is the civil standard, that is, the balance of probabilities.

Required considerations

1. Section 30 of the Act sets out how an application under section 28 is to be determined by the Tribunal: 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. The Act also specifically provides that an enabling order may not be made subject to conditions (section 28(8) of the Act) and that an applicant is required to fully disclose any matters relevant to the application for an enabling order (section 28(5) of the Act).

Consideration of section 30(1) factors

1. The evidence and the Tribunal's findings are now considered under each of the subsection 30(1) factors.

(a) The seriousness of the offences with respect to which the applicant is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar

1. The applicant has been convicted of three offences that are deemed disqualifying offences under Schedule 2 of the Act. The details of the offences are set out below:

Indecent assault of male in 1981 ('the first disqualifying offence')

1. On 5 February 1981, the applicant (who was 29 years old at the time) entered the male toilets of the Auburn Swimming Pool and attempted to encourage a young boy, aged 14 years old, to engage in mutual masturbation with him.
2. The applicant was found guilty of the offence in the Lidcombe Court of Petty Sessions on 26 January 1981 and was sentenced to a good behaviour bond for three years and to accept the supervision of probation and parole.
3. The applicant, in his oral evidence in chief and under cross examination, made reference a number of times to the fact he had been abused when he was at high school and when he reported the incident to the school principal no action had been taken. The applicant at times in his oral evidence said words to the effect that "none of these offences would have happened if [the principal] had dealt with the abuse". In his written statement dated 5 May 2016 at Tab 1 of Exhibit A2 stated that "in the past I have committed offences against young people but I have intention of repealing (sic) those mistakes".
4. The applicant's evidence in chief and under cross examination in response to questions about the first disqualifying offence, was at times inconsistent, vague and evasive. He stated at various stages in his evidence that he could not remember the details of what happen; that the charge was dismissed; confirmed that he had pleaded guilty to the offence but could not recall being placed on a good behaviour bond.

Act of indecency on male under 18 years in 1985 ('the second disqualifying offence')

1. A Police Incident Report at page 60 of Exhibit R1 states that on 8 June 1985, the police found the applicant (who was 34 years old at the time) in his car in inner city Sydney engaging in oral sex with a male juvenile. The applicant had 'picked up' the juvenile in Kings Cross earlier that evening and paid him $25 for sexual activity. The juvenile was 17 years old at the time of the offence (page 92 of Exhibit R1). The Police Fact Sheet at page 94 of Exhibit R1 states that: The defendant was spoken to by police and readily admitted going to the Kings Cross area and picking up the juvenile and driving to Mrs Macquarie's Road in the Domain and engaging in the homosexual act with the individual
2. In the sentence proceedings, the applicant replied upon reports dated 17 June 1985 and 13 September 1985 from psychologist Mr W John Taylor. The reports state in part that: [CLQ] is most distressed about these events and is keen to work with me to resolve the problem. He has recognised that his behaviour has been inappropriate and is well motivated to gain further insight and to overcome the problem.
3. The offence was found proven in the Local Court on 23 September 1985 and the applicant was discharged on a good behaviour bond for a period of three years on the condition that he continue medical and psychological treatment.
4. The applicant in his evidence in chief initially stated that he did not remember the incident. He subsequently agreed in his evidence in chief that he did 'pick up' the individual to engage in sex; was arrested; went to court and was released on a good behaviour bond. Under cross examination, the applicant again said he could not remember the details of the incident nor being discharged on good behaviour. He conceded that if it was "written down in the papers then it must be right".
5. The report by Mr William Stone was tendered into evidence by the applicant (see page 3 of Exhibit A2). Mr Stone states in that report that in respect to the Applicant's criminal offences, "[the applicant] maintained a sense of aversion to having exploration of the facts and events regarding the offences". This reluctance was evident to the Tribunal at various times during the applicant's evidence.

Incite an act of indecency with a person under 16 years in 1986 ('the third disqualifying offence')

1. Documentation tendered by the respondent (see page 23 of the Exhibit R1) states that on 15 September 1986, the applicant (who was 35 years old at the time) approached a 14 year old boy at Westfield Shopping Centre, Parramatta and said: 'Do you want fifty dollars'. The victim inquired as to what he had to do to get the fifty dollars. The prisoner said, 'To give you a head job'. The victim said 'Forget it' and went to walk away. The prisoner then said, 'How about sixty'. The victim then said, 'You better get out of here before I call my parents'. The prisoner then decamped.
2. Upon an immediate reporting of the incident by the victim, the applicant was questioned by police, admitted the offence and was charged. On 31 March 1987, the applicant pleaded guilty to the offence and was sentenced at Parramatta District Court. The applicant relied upon two reports prepared by Professor Neil McConaghy, Psychiatrist, for the sentencing hearing. In a report dated 19 March 1987 (page 21 of Exhibit R1), Professor McConaghy outlined the applicant informed him that: He was aware of being sexually attracted to youths, but usually could control these urges even though the thoughts obsessed him…he feels he has some sexual interest in women and he could develop this if he could lose his obsessive interest in boys.
3. On sentence, the applicant also relied upon his own statement that set out that he has 'great personality problems' and found relationships difficult. He acknowledged that in relation to this particular offence, he had asked the victim if he wanted to earn some money in exchange for 'light sex e.g masturbation' (page 31 of Exhibit R1).
4. The applicant's sentence was deferred by the court on the condition of good behaviour for a period of three years and that the applicant continue under the care of both Dr Taylor and Professor McConaghy and submit to any treatment recommended by them.
5. The applicant in his evidence in chief stated that he remembered the incident referred to above. He said that the abuse he had experienced in high school, had a hypnotic effect on his brain. Under cross examination, the applicant stated that he 'was in a trance' at the time and did not know how old the victim had been.

Seriousness of the offences

1. The applicant submitted to the Tribunal that: on a scale of criminality whilst serious the offences cannot be on an objective scale compared to offences such as murder or sexual assault. On a sub scale relating to sexual offences, again the measurement would be set at the lower end of the scale.
2. The respondent submitted that: The objective seriousness of the offences may not be considered high for the purpose of sentencing in criminal law. However, the disqualifying offences must be considered serious for the purposes of a determination of an assessment of the risk to children.
3. The Tribunal acknowledges that the three disqualifying offences are historical and the last one occurred 30 years ago. The applicant did not serve time in custody and was placed on a series of good behaviour bonds. On the spectrum of offences and sentencing in criminal law, they may objectively not be considered as serious. However, from the perspective of determining a risk to children, the Tribunal is satisfied they are serious offences. Each of the disqualifying offences involved approaching young vulnerable male juvenile victims for the applicant's sexual gratification. The offences were not isolated events, were exploitative of the victims and by their nature jeopardised the safety, welfare and well being of the victims.

(b) The period of time since those offences or matters occurred and the conduct of the applicant since they occurred

1. Thirty years has elapsed since the last disqualifying offence. The applicant's conduct since that time is referred to in detail under sub paragraph (h) below but involves conduct of concern relating to young males in 1996, 1997 and 2009.

(c) the age of the applicant at the time the offences or matters occurred

1. The applicant was 29 years of age at the time of the first disqualifying offence; 33 years of age at the time of the second disqualifying offence and 35 years old at the time of the third disqualifying offence.

(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 victims

1. The male victims in the three disqualifying offences were 14 years old; 17 years old and 14 years old respectively at the time of the relevant disqualifying offence.

(e) The difference in age between the victims and the applicant and the relationship (if any) between the victims and the person

1. The difference in age between the victim and the applicant was 15 years in the case of the first disqualifying offence; 16 years in the second disqualifying offence and 21 years in the third disqualifying offence.

(f) Whether the applicant knew, or could reasonably have known, that the victims were children

1. In the Application Form for the review of the respondent's decision, the applicant has set out as a ground for review that he "was not aware that any of the victims of each of the three offences was under the age of 18". The applicant on cross examination gave evidence that a Legal Aid solicitor had filled out the form for him and he had signed it. When asked if he had told the solicitor that he was not aware of the ages of the victims in the disqualifying offences, he said that he could not remember.
2. The applicant did not know any of the victims personally. However, the Tribunal is satisfied on the balance of probabilities that the applicant could reasonably have known that the victims were children. Furthermore, the applicant acknowledged in his pleas of guilty to the three disqualifying charges that he was aware of the ages of the victims.

(g) the person's present age

1. The applicant is presently 64 years old.

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

1. The applicant's criminal record, in addition to the three disqualifying offences, includes an offence of driving while disqualified in 1987 and an offence of using offensive language in 1988.
2. The respondent put the following matters before the Tribunal relating to relevant conduct of and allegations against the applicant since the disqualifying offences: 1. The applicant was charged with "inciting an act of indecency with a person under 16 years of age" in 1987. The charge related to a 13 year old boy alleging that the applicant followed him into the cubicle of a public toilet in a park in Parramatta and grabbed his genitals. The applicant stated to the police that he was in the toilet; opened the door to get some toilet paper and saw the boy but did not touch him. The applicant was charged and committed for trial and entered a plea of not guilty. He was tried and acquitted of the charge in August 1989. 2. In July 1996, the applicant was observed and spoken to by police in Kings Cross while in the company of a juvenile suspected by the police to be working as a prostitute. The applicant denied knowing the juvenile. 3. In April 1997, the applicant was stopped and spoken to by police in regard to his interaction with a young male person in Kings Cross who police suspected he was trying to 'pick up'. The applicant was observed by police walking with the young male and showing him some money. When questioned, the applicant denied he knew the young male and said the young male had approached him and asked for a dollar. 4. In August 2009, the applicant was questioned by police in regard to an incident at the Courthouse Hotel where a 17 year old boy alleged to police that the applicant had put his hands and head under a toilet cubicle wall while the juvenile was in the cubicle. The juvenile did not want to proceed with any complaint and the applicant denied the allegation.
3. Under cross-examination, the applicant agreed that he had had the above interactions with the police since the last disqualifying offence.
4. The applicant in his written statement (page 1 and 2 of Exhibit A2) and in his oral evidence stated that since the disqualifying offences, he has: 1. been sober for 24 years and attends Alcoholics Anonymous meetings every day; 2. receives medication and treatment for mental health issues including being under the care of Mr William Stone; Dr Viswanathan Krishnan (GP) and Dr Astrid Rogoz (Psychiatrist); 3. attends a prayer group and has been elected to the Council of Secular Franciscans; 4. made efforts to dedicate his life to assisting marginalised people by working at Matthew Talbot Hostel for 12 years; lobbying state and federal governments on issues relating to the disadvantaged; visited Calcutta in India and worked in the community in East Timor; and 5. sought to work at … Chapel so he could assist disadvantaged people by using his skills as a pastry chef in the kitchen.
5. It would appear to the Tribunal that the applicant has made genuine efforts to seek assistance and put in place supports to conduct himself in such a way that he has not come to the notice of authorities for almost 7 years.

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

1. The applicant told the Tribunal on a number of occasions during his evidence that he does not wish to engage in any work that involves children. He stated that he only wants to work in the kitchen at the … Chapel and it was the staff at the … Chapel that suggested he may have skills that would enable him to work with youth. The applicant said that it was the … Chapel who said they had to seek a WCCC clearance: he did not ask them to do it on his behalf. He said that if he was asked to be a youth worker, he would decline because he wanted to 'stay right away from it'.
2. The applicant relied upon reports from Mr William Stone dated 16 February 2016 and 24 February 2016 (part of Exhibit A1) and 19 April 2016 (page 3 of Exhibit A2). Mr Stone also gave oral evidence to the Tribunal. Mr Stone stated that he has been seeing the applicant as a weekly patient for over a period of four and a half years except for a period of almost 12 months in 2013 when the applicant ceased therapy. Mr Stone states in his report that "I do not believe [the applicant] presents any risk to anyone else or himself".
3. In his report dated 16 February 2016, Mr Stone reports that the applicant had explained the disqualifying offences to him as follows: [the applicant] was not aware at the time of contact with the three male individuals that they were under the age of eighteen. He recalls that each of these individuals were approached and consented to accompanying [the applicant] to his home. He explains that at this point in time around his local area in Sydney, he perceived this behaviour as acceptable. In these approaches, the male respondents all willingly agreed to accompany [him].
4. The report of Mr Stone dated 19 April 2016 indicates that at the time of writing that report, Mr Stone was aware that the offences related to 'sexual relations with young males under eighteen'. On cross examination, Mr Stone said that it was during the process of the applicant preparing for these proceedings that he had told Mr Stone the true nature of the offences. Mr Stone agreed that he did not have any objective history of the Applicant's behaviour or criminal record and was dependent upon what the applicant told him. He acknowledged that he had not been able to complete a formal assessment of risk because of the lack of an objective history. He conceded that his statement that the applicant is not a risk to anyone is based on Mr Stone's own belief.
5. The applicant conceded in cross examination that he had not always been fully truthful with Mr Stone as to his past but he had been with his Counsel, Mr Thomas.
6. Mr Stone also gave evidence that the applicant experienced paranoia and does not want to work with children because he is paranoid that people will observe him closely if he was to do so. Mr Stone said, in his view, the applicant's resistance to working with children is not because he believes they would be at risk with him.
7. The Tribunal acknowledges that the disqualifying offences occurred 30 years ago and that the applicant has made many efforts since then to incorporate into his life, professional and community supports and treatments that may mitigate against him re-offending. However, the Tribunal is not satisfied that the applicant demonstrated a level of insight and awareness into his offending conduct that is sufficient to discharge the onus upon him to establish that the likelihood of committing similar offences is low.

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

1. The applicant also relied upon a number of character references in support of his application. They attest to his good character, spirituality and concern for others.
2. The Tribunal was unable to give the references any great weight given it is not clear from their content whether the referees were aware of the nature of the applicant's disqualifying offences.

Conclusion and Orders

1. In all the circumstances and taking into account the considerations required under section 30(1) of the Act, the applicant has failed to rebut the statutory presumption that he poses a real and appreciable risk to the safety of children.
2. The Tribunal acknowledges that the applicant wants to work in the kitchen of the … Chapel and does not seek to have any contact with children. It remains, however, that granting a clearance would enable the applicant to work in any child-related work or child related role.
3. Accordingly, the appropriate order is to refuse the applicant's application for an enabling order. 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: 21 September 2016