CSX v Children's Guardian

The Evidence

1. At the hearing, the applicant relied upon the following material: 1. an Administrative Review Application Form filed with the Tribunal on 26 September 2016 with attachments (Exhibit A1); 2. a bundle of documents titled Documents filed by the Appellant filed on 18 January 2017 (Exhibit A2); 3. a reference for the applicant dated 17 October 2014 (Exhibit A3); and 4. a single page titled Report on Use of Force (Exhibit A4).
2. The applicant also relied upon written submissions filed on 10 May 2017 and Counsel for the application made oral submissions on 15 May 2017.
3. The applicant gave oral evidence in chief and was cross examined by Ms Lowson, Counsel for the Respondent.
4. The respondent tendered into evidence the following material: 1. a bundle of documents titled Documents filed by the Applicant pursuant to section 58 of Administrative Decisions Review Act 1997 Volume 1 of 2 filed on 27 October 2016 (Exhibit R1); 2. a bundle of documents titled Documents filed by the Applicant pursuant to section 58 of Administrative Decisions Review Act 1997 Volume 2 of 2 filed on 27 October 2016 (Exhibit R2); 3. a bundle of documents titled Further Documents filed by the Respondent filed on 15 February 2017 (Exhibit R3); and 4. a bundle of documents titled Further Documents filed by the Respondent filed on 10 March 2017 (Exhibit R4).
5. The respondent showed to the applicant during cross-examination, CCTV recordings of the two incidents in 2011 and 2014 where it was found by the applicant's employer he had used excessive and unreasonable force against juvenile detainees.
6. The respondent relied upon written submissions filed on 21 April 2017 and Counsel for the respondent made oral submissions to the Tribunal on 31 August 2016.

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 Act states: 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 wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act.
3. 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 person who is refused a WWCC clearance 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. 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).

Risk to children

1. The test to be applied by the Tribunal in considering the application, is whether the risk the applicant poses to children is "a real and appreciable risk". The meaning of the word 'risk' was considered by Young CJ in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 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'…
2. In M v M (1988) 166 CLR 69, the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. The two propositions have been recently summarised by Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [14] to [17] as follows: The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to: "… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare." Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.

Onus and standard of proof

1. Neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. The standard of proof applied is the civil standard, that is, the balance of probabilities.

Summary of evidence and findings of fact

1. The applicant was granted a WWCC clearance on 27 August 2013. The respondent cancelled the applicant's WWCC clearance on 26 August 2016 following a risk assessment that identified the applicant, during his employment by the Department of Juvenile Justice, had findings against him of the "serious physical assault of a child" in the context of incidents on 26 December 2011 ("the 2011 incident") and 28 August 2014 ("the 2014 incident") involving, respectively, a 14 year old detainee and a 15 year old detainee.
2. The applicant was also the subject of an investigation into an allegation that on 25 December 2011 he used more force than was necessary on a juvenile detainee. The finding of that investigation was that it was not reportable conduct and that the force used was reasonable.

The 2011 incident

1. The 2011 incident consisted of the following circumstances: 1. a 14 year old detainee, who had been behaving aggressively, was returning to his room and being followed by the applicant; 2. while walking up a set of stairs, the detainee pushed his elbows in the direction of the applicant who was walking behind him; 3. the applicant pushed the detainee in the back up the stairs towards the landing; and 4. when they reached the landing at the top of the stairs, the applicant slung the detainee over his right hip in a movement that forced the detainee's head towards the floor.
2. The investigation into the 2011 incident found that the applicant's actions placed the detainee at significant risk of injury; that the applicant had used more force than reasonably necessary and that he had provided false and misleading information regarding the use of force on the detainee.
3. The applicant challenged the finding in an appeal to the Industrial Relations Commission. The appeal was dismissed.
4. The applicant agreed under cross-examination by Counsel for the respondent that the force he used in the 2011 incident was unreasonable and that his actions could have seriously injured the detainee. The applicant's Outline of Submissions filed on 10 May 2017 state in paragraph 2: In 2011, the applicant followed an aggressive detainee up some stairs where he slung the detainee over his right hip in an unauthorised "hip throw" movement, getting him entirely off balance and propelling his head dangerously towards the surface of the stairs. Rather, as he was alone, the applicant should have waited for help, meanwhile distancing himself from this detainee and meeting the latter with the recognised calming negotiation strategies he'd been taught. This was not done and his part is all the more inappropriate when it is seen that the incident had the added danger of being on a set of stairs - at the end of same, in any event, were locked doors which entirely obviated any risk the applicant had apparently thought he was responding to.
5. The Tribunal agrees with the submissions of the applicant and respondent with respect to the 2011 incident. It is satisfied the applicant used unreasonable force on the 14 year old detainee and the incident was a serious physical assault of a child.

The 2014 incident

1. The 2014 incident involved the following circumstances: 1. a 15 year old detainee became angry with another detainee and walked away to make a telephone call; 2. a youth officer following the detainee and tried to calm him down; 3. a struggle ensued between the youth officer and the detainee and the youth officer and detainee fell to the ground with the youth officer sustaining a fractured leg; 4. the applicant approached the detainee while the injured youth officer was on the ground. The following description of the incident is from the Inquiry Report into the incident prepared by the Senior Investigator, Child Protection Professional Standards Unit, Department of Justice based on his interview with the applicant: "[the applicant] stated that while [the detainee] was on the floor, he said 'I'm gonna smash ya, fucking dog' and it was clear to [the applicant] that [the detainee] was not finished with the 'scuffle'. [The detainee] 'popped up to his feet, very hyped up' and pushed [the applicant]. Once he pushed [the applicant] he stepped back into a fighting stance… Given the situation, the limited space and the vulnerability of [the injured youth officer], [the applicant] deemed it necessary to use force to restrain [the detainee]. In the training that [the applicant] had received, he was taught to go either 'high with a bear hug or go low'. He chose to go low because of [the detainee's] physical strength. He thought that a staff member was behind him to assist in bringing [the detainee] to the floor. Unfortunately, the staff member was not there. Nevertheless, he went low because he thought it was the safest place for him to hold [the detainee]. Once he had hold of [the detainee] he took him to the floor as quickly as he could. … [The applicant] admitted that the CCTV shows [the detainee's] legs going high. He also admitted to bending down so he could reach [the detainee's] thigh area in order to carry out the use of force. His intention at the time was not to use any more force than necessary. He denied driving [the detainee] to the floor. However, he believed that [the detainee] 'was forced on the floor, that's why it was a use of force'. [The applicant] stated that it was 'reasonable and necessary to take hold of his lower legs, his lower torso and put him to the ground as quickly as possible'. He had no time to discuss the various avenues available. There was no doubt in his mind that [the injured youth officer] was in danger. [The applicant] stated that he limited any opportunity for harm and used a technique that was shown to him by the Department. He emphasised that in eight years that he has only had refresher training once in relation to use of force. [The applicant] stated that it was not his intention to pick [the detainee] up or even bring his legs up. In his training, he believes there is 'nothing saying that you can't'. He believed he did not try and put [the detainee] in a dangerous situation. He agreed that the CCTV shows that [the detainee] may have been put in a dangerous position. He noted though that [the detainee] was not injured as a result of the use of force."
2. This incident resulted in the following allegations of misconduct being brought against the applicant: 1. On or about 28 August 2014, [at the juvenile justice centre] you breached clause 65 of the Children (Detention Centres) Regulation 2010 in that you used more force than was reasonably necessary on [the detainee]: 2. On or about 28 August 2014, [at the juvenile justice centre] you breached the Juvenile Justice Client Protection and Wellbeing Policy in that you assaulted [the detainee] when you picked him up and forced him to the ground.
3. The Senior Investigator concludes in his report into the allegations that: The CCTV provided as part of this inquiry indicates that [the applicant] used more force than was reasonably necessary on [the detainee]. … The ITAP manual states that a youth officer can lift a detainee's legs up slightly while the detainee is lowered to the ground. The way [the applicant] picked [the detainee] up and subsequently forced him to the floor is in contravention to what youth officers are taught according to the manual. A detainee's legs can only be lifted slightly in a two person restraint not a one person restraint. While I agree that [the applicant's] intervention was required given [the detainee's] aggressive behaviour and the fact that [the other youth worker] was on the floor injured, the force used was not only excessive it also constituted an assault given [the detainee] was picked up and forced to the floor. The action was unjustified, unnecessary and it had the potential to cause serious injury. [The applicant] also acted recklessly in that he ought to have known that his actions could cause physical harm or fear of physical harm in the context of the NSW Ombudsman's Practice Update 2013. … The evidence in my view meets the Briginshaw standard to sustain allegations one and two and, as such, I am satisfied on balance that [the applicant] breached clause 65 of the Children (Detention Centres) Regulation 2010 and the Juvenile Justice Client Protection and Wellbeing Policy.
4. The Senior Investigator also found a third allegation sustained: that the applicant breached the Juvenile Justice Code of Conduct by failing to create an accurate and honest use of the force report of the incident involving the detainee.
5. At the hearing before the Tribunal, the applicant's evidence was consistent with his statements summarised by the Senior Investigator in paragraph 28(4) above. The applicant stated he believed the findings of the investigation were incorrect and that the force he used in the incident was reasonable in the circumstances. He stated in cross examination that he would take the same action today if presented with the same circumstances.
6. Counsel for the applicant submitted in writing that the force the applicant used in the 2014 incident was reasonable and relied upon the following factors in support of that submission: 1. the detainee's statement during the investigation that he had reached such a level of rage that he had 'blacked out'; 2. the detainee's medical record showing no record of injuries from the incident; 3. the applicant's version of events being supported by other youth officers who witnessed the incident; 4. the injured youth officer presenting at the time as someone "very much in need of urgent protection"; and 5. the detainee was 95-100 kgs and 183 cms in height and behaving in an aggressive manner.
7. The respondent submitted that the findings of the Senior Investigator were correct.
8. The Senior Investigator in preparing his report of the 2014 incident interviewed or had statements from all witnesses to the incident as well as access to the CCTV footage. The Senior Investigator agrees the applicant's intervention was required given an officer was injured and the detainee was being aggressive. He found the force used to be not only excessive but also constituting an assault and that the applicant's action was "unjustified, unnecessary and… had the potential to cause serious injury". The Senior Investigator had before him the factors relied upon by the applicant in paragraph 33 above and still found the use of force to be excessive.
9. The Tribunal places greater weight on the findings of the Senior Investigator than on the applicant's interpretation of the 2014 incident. The Tribunal is satisfied on the balance of probabilities that the factual finding can be made that the applicant used unreasonable force and assaulted the detainee on 28 August 2014. The Tribunal makes this finding of fact on the basis of all the evidence before it including the findings of the Senior Investigator as well as the Tribunal viewing the CCTV footage from the 2014 incident.

Matters to be considered by the Tribunal

1. The Tribunal determines an application under section 27 by considering all the evidence presented by the applicant and the respondent in light of the mandated considerations contained in section 30 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32].
2. Section 30 provides: (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. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.

Application of section 30(1) factors to the evidence

1. The evidence is now considered under each of the subsection 30(1) factors.

(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

1. The Tribunal is satisfied that the matters that "triggered" the cancellation of the applicant's WWCC clearance fall within the upper end of seriousness for such matters. The applicant was in a position of authority over juvenile detainees. He agrees he used unreasonable force against the juvenile detainee in the 2011 incident. As stated above, the Tribunal is also satisfied on the facts before it that the applicant used excessive force and assaulted a detainee in the 2014 incident.

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

1. It is less than three years since the 2014 incident and more than six years since the 2011 incident.

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

1. The applicant was aged 25 years at the time of the 2011 incident and 28 years at the time of the 2014 incident.

(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

1. The victim of the 2011 incident was 14 years old at the time of the incident. The victim of the 2014 incident was 15 years old at the time of the incident.
2. The Tribunal is satisfied there was an imbalance of power in the relationship between the applicant and the victims that made the victims inherently vulnerable. The victims were under the care of the applicant as youth detainees and he was in a position of authority over them.

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

1. There was an 11 year age difference between the victim and the applicant in the 2011 incident and a 13 year age difference between the victim and the applicant in the 2014 incident.

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

1. The applicant knew that each victim was a child as they were juvenile detainees.

(g) the person's present age

1. The applicant is currently 30 years of age.

(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 is minor (relating to traffic and vehicle offences) and is of limited relevance. A police incident report records that the applicant assaulted a person while working as a security guard at a hotel in 2009. The matter was not prosecuted.
2. As a result of the 2011 incident, the applicant was penalised with a fine of $3000. The respondent submitted that following the 2011 incident, the applicant "was specifically on notice, in 2014, of the need to exercise appropriate restraint when dealing with detainees, yet still engaged in conduct leading to the termination of his employment".
3. There is no record of complaints being made against the applicant since the 2014 incident.

(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 submits that the 2014 incident is not a repeat of the 2011 incident because "the difference between the two incidents is significant" and that, in his opinion, the force used in the 2014 was not inappropriate.
2. The respondent submitted the applicant used excessive force against juvenile detainees on two occasions during his employment with Juvenile Justice. It stated that the applicant, having been disciplined and fined for using excessive force in 2011, was on specific notice of the need to exercise care when handling detainees. The respondent submitted: The fact that he again engaged in the same conduct suggests issues around his capacity to assess the situation, the exercise of judgment when dealing with a situation, and/or his disregard for complying with rules in that situation. A significant issue is the lack of insight and apparent inability on the part of the applicant to recognise that his conduct in using more force than necessary against detainees is a serious matter. It also reflects ignorance or a lack of appreciation for the special nature of the duty of care towards detainees, even those detainees whose own conduct presented challenges to juvenile justice officers.
3. The Tribunal acknowledges that during his evidence, the applicant displayed insight and regret into his conduct in the 2011 incident. He stated that upon receiving further training, he realised he had used excessive force in managing the detainee in the 2011 incident.
4. The applicant was clear in his evidence to the Tribunal that he does not accept the findings of the Senior Investigator that he used excessive force in the 2014 incident. He stated that if he was in the same situation again, he would act in the same manner as he did during the 2014 incident. The Tribunal places considerable weight on this admission by the applicant. It is satisfied there is a likelihood the applicant could repeat the conduct he displayed in 2014 that was found to be an excessive use of force and an assault on a child.
5. Counsel for the applicant submits in his written submissions that the applicant's actions in the 2011 incident had the result of "propelling [the detainee's] head dangerously towards the surface of the stairs". The Investigation Report into the 2014 incident states that the applicant's action "had the potential to cause serious injury" to the juvenile detainee. The Tribunal is satisfied that the impact on a child of a repetition of the 2011 or 2014 conduct could be very serious.

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

1. The respondent submitted that the information given by the applicant in relation to the application prior to the hearing does not disclose that the applicant accepts he used excessive force in the 2011 incident. It was only at the hearing through his evidence and his Counsel's written submissions that he acknowledges he acted inappropriately in the 2011 incident. The respondent also submitted that there was minimal material given by the applicant during the risk assessment or as part of his application to the Tribunal that deals directly with the 2014 incident and when it does, it justifies his conduct at that time.

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

1. The Children Guardian did not raise any other matters other than those already outlined above.

Tribunal's consideration and determination

1. The Tribunal has carefully considered all the evidence and submissions given and filed by the parties even if they are not specifically referred to in these reasons.
2. As outlined above, the primary issue for the Tribunal to determine is what the correct and preferable decision is having regard to the material before the Tribunal in relation to cancelling the applicant's WWCC clearance. The jurisdiction of the Tribunal under section 27 is protective of children and not punitive of the applicant. There is no requirement for 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) ALD 88). There is also no onus on the applicant to show that he is not a risk to children.
3. The Tribunal is required to determine whether the applicant poses a "risk" to the safety of children. The Tribunal has to determine if "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" (Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]).
4. The applicant acknowledges he used excessive force against a detainee (who was a 14 year old child at the time) in the 2011 incident. He also acknowledges he used force against a detainee (who was a 15 year old child at the time) in the 2014 incident. The applicant does not accept, however, that the force used was excessive due to the particular circumstances at the time including that his colleague was injured on the floor and the detainee was behaving aggressively.
5. The Tribunal is satisfied that there is a likelihood or possibility of similar events occurring as those that took place in the 2014 incident if the applicant was placed in similar circumstances again. This finding is based on the lack of genuine insight the applicant displayed in his evidence as to his conduct in the 2014 incident; the relatively short period of time that has elapsed since this incident (less than three years) and that the 2014 took place even though the applicant was on notice at the time as to the care that had to be taken in handling detainees given the 2011 incident. For these reasons, the Tribunal is satisfied that the applicant poses a real and appreciable risk to children that is greater than the risk any adult would pose. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children.
6. 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 WWCC clearance.

Orders The order of the Tribunal is that: 1. The decision of the Children's Guardian dated 26 August 2016 to cancel the applicant's Working with Children Check clearance is affirmed. 2. The application for review of the decision of the Children's Guardian filed on 26 September 2016 is otherwise refused and dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 19 July 2017