The applicant applied to the Children's Guardian for a Working With Children Check clearance on 11 August 2016. On 5 September 2016 the Children's Guardian issued the applicant with a notice of disqualification for working with children. The 5 September letter identified that the applicant is a disqualified person pursuant to the Child Protection (Working with Children) Act 2012 (NSW), which is hereafter called "the Act". The disqualifying offence was the conviction, in terms of section 5 of the Act, for the offence of carnal knowledge in 1976. That was an offence contrary to section 71 of the Crimes Act 1900 (NSW).
On 4 October 2016, the applicant filed his application in the Tribunal seeking an enabling order pursuant to section 28 of the Act and that became, together with its annexures, Exhibit A1 in these proceedings. Annexed to that document is Annexure A which sets out the basis upon which the applicant says the enabling order should be made. It discloses his criminal history and CSZ specifically asks the Court to take into account a number of factors, primarily the age of the applicant at the time of the offence, or the offence plus one, that the other party was his girlfriend at the time for approximately 19 months and the penalty which he received did not involve, as he says, an actual "conviction", and reflects the fact that there was no malice and the incident was consensual as far as the parties to the offence could consent.
The enabling order is sought apparently so the applicant can work as a maintenance worker in a school, but the grant of the application for an enabling order will permit the applicant to work in any capacity involving children. This application is subject to section 30 of the Act which was amended, the amendments came into force on 2 November 2015. Those matters are addressed in the submissions of the respondent which became Exhibit R5 in these proceedings.
The respondent has filed further documents in relation to its enquiries about the applicant. Significantly, the respondent is required to be a party to the proceedings by reason of section 28 of the Act, and the Children's Guardian does not oppose the application.
The applicable law is set out in a number of decisions of this Tribunal and does not need to be repeated, but significantly the law in relation to section 28 is referred to in the decision CMT v The Children's Guardian [2016] NSWCATAD 280 and we adopt what is recorded there about the relevant legislative provisions in relation to this application.
The respondent's submissions helpfully identify that in relation to the two charges of carnal knowledge under s 71 of the Crimes Act the first charge occurred between 31 August 1975 and 1 October 1975 and the second charge of carnal knowledge occurred between 30 September 1975 and 1 September 1975. Section 71 of the Crimes Act was repealed in 1985 and the relevant provision at the time the offences were committed is extracted in the submissions of the respondent under a heading "Carnally Knowing Girl Between 10 and 16" and provides:
"Whosoever unlawfully and carnally knows any girl of or above the age of ten years and under the age of 16 years shall be liable to penal servitude for ten years."
On a date in 1976 the Court of Petty Sessions made an order discharging the applicant conditionally on his entering into a recognisance pursuant to the then s 556A of the Crimes Act, which is the equivalent of section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) currently in force in New South Wales. That recognisance was in the sum of $400 and to be of good behaviour for a period of 12 months. The Court did not proceed to "conviction". As previously referred to the definition of "conviction" in section 5 in 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 did not proceed to a conviction, so therefore in terms of the sentence of the Court it is treated as a conviction for the purposes of the Act. Section 71 of the Crimes Act is specified in clause 1(1)(i) of schedule 2 of the Act as a disqualifying offence and so therefore the applicant is a disqualified person by reason of s 18 of the Act.
There is a presumption under section 28 subsection (7) of the Act that the applicant poses a risk to the safety of children and the onus is on the applicant to prove, on the balance of probabilities, that he does not pose a risk to the safety of children. In determining whether the applicant does pose a risk to children the risk must be a real and appreciable risk and specifically be a risk to the safety of children. That is in accordance with the authorities that are quoted in both the respondent's submissions and in the decision to which we have previously referred. The applicant is required to fully disclose to the Tribunal any matters relevant to the application under s 28(5) of the Act.
Section 30 describes the matters the Tribunal is to take into account when determining a section 28 application. If we determine that the applicant has discharged the onus that is on him, there is a further step involved under subsection (1A) of section 30 which was inserted, as earlier stated, and came into force on 2 November 2015. That subsection provides that the Tribunal may not make an order under this Part of the Act which has the effect of enabling a person, or the affected person, to work with children in accordance with this Act unless the Tribunal is satisfied that:
1. 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
2. it is in the public interest to make the order.
That provision has been given some consideration in the matter of CHB v The Children's Guardian [2016] NSWCATAD 2014 and also in CMA v The Children's Guardian [2016] NSWCATAD 264. The Tribunal has in past decisions referring to this provision also referred to the decision in the Victorian Supreme Court of ZZ v The Secretary Department of Justice [2013] VSC 267.
The public interest test factors include the right of a person to engage in work and community affairs and that people with appropriate skills and experience should be having contact with children.
The section 30 considerations under subsection (1) of section 30 are requirements that the Tribunal must look at in determining whether or not to grant an enabling order.
The first of those matters is the seriousness of the offences with respect to which the person is a disqualified person or any matters that cause the refusal of a clearance or the imposition of an interim bar.
The respondent's submissions set out helpfully under that heading a large number of matters which do not need to be verbatim repeated in these reasons. Suffice it to say that the victim and the applicant were in a relationship at the time of the offence, that offence having commenced sometime in December 1973 and they met through roller skating. That is contained in the statement of the victim who was the girl with whom the applicant was involved.
The circumstances of the offence are contained in the police interview with the applicant and the statement of the victim. Those documents are contained within the material provided to the Tribunal by the respondent. The applicant was interviewed by the police and apparently was forthright in his interview with the police.
The circumstances at the time of the offence are repeated in the respondent's submission, they do not need to be repeated here. Significantly during the police interview the applicant said, "I love her and I want to marry her", in relation to the girl with whom he was involved at the time and it would appear that he did not realise at the time of the offence that it was in fact illegal to be doing what they did.
The applicant's lawyer submitted to the Court on 27 January 1976 that the applicant was surprised at the penalty for the offence which was quite serious and he said that he realises he cannot marry the girl because of her age and that he did some wrong and was to be punished. The lawyer said that the applicant did not think about the outcome. The maximum penalty for the offence of carnal knowledge was ten years imprisonment. Having received a good behaviour bond or the equivalent of a section 556A under the Crimes Act it is suggested by the respondent in submissions that the Court regarded the offence as at the lower end of seriousness. That would appear to be, in the Tribunal's respectful view, correct. The gravity of the offence is reflected in the circumstances of the offence but also in the punishment which the Court considered appropriate at the time.
The next matter to consider is when the offence occurred under subparagraph (b) of section 30(1), the period of time since those offences or matters occurred and the conduct of the person since they occurred. It was 41 years ago that the offence occurred and the applicant has not been the subject of any investigation or adverse attention from any child protection authorities. There is no evidence of the applicant being the subject of a complaint or any allegations of inappropriate behaviour during the intervening years. There is some criminal history which will be referred to in the appropriate part of the evidence. It is not a significant criminal history.
The age of the person at the time of offences or matters occurred is the next matter under subparagraph (c) of section 30(1). The applicant was aged seventeen years for one of the offences and on the second count (the victim was the same person) the applicant was eighteen years.
The victim was fifteen at the time of the first offence and the next matter is considering the age of the victim of the relevant offence, the conduct at the time they occurred and any matters relating to the vulnerability of the victim. The victim was fifteen, clearly vulnerable due to her age, and she was unable to legally consent to the sexual intercourse even though she did not dispute that she agreed to the extent that she says. The victim and the applicant say that the offence was not conducted with any violence or threat of harm, it would appear to have been in the context of a young experience of sexual exploration between two parties.
There is no other material as to any other issues relating to the vulnerability of the victim.
The difference in age is the next matter to consider under subparagraph (e), "the difference in age between the victim and the person and the relationship if any between the victim and the person". To some extent that has already been referred to in the discussion of the matters that are appropriate for this subparagraph. The applicant was approximately three years older than the victim at the time of the offence, they were in a relationship at the time of the offence and it would appear that the parties were relatively close in age and there was no power imbalance by reason of that difference in age.
Subparagraph (f) of section 30(1) is "whether the person knew or could reasonably have known that the victim was a child". In the police interview the applicant said he was aware that the victim was 15 years of age.
The next matter is subparagraph (g) "the person's present age". The applicant is presently 59 years of age.
The next matter is "the seriousness of the person's total criminal record and the conduct of the person since the offences occurred". The applicant was convicted of refusing to leave licensed premises in 1976. The applicant received a penalty of $40 or eight days hard labour. The applicant was also convicted of an assault in 1976; apparently the victim was a male "age unknown". The applicant received a penalty of either $80 or 16 days hard labour. The applicant was convicted of a middle range drink driving offence in 1987 and a drive with a high range PCA in 2011. The applicant has not been charged with any other offence which would suggest that he poses a risk to the safety of children according to the submissions of the respondent and, it appears from the exhibited material that is correct. There are also no reports included in that material of the applicant being the subject of a complaint or any allegations of inappropriate behaviour towards children or young people.
Under subparagraph (i) of section 30(1) "the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition" is the next matter to be considered.
The respondent submits to the Tribunal that the likelihood of any repetition by the applicant of further offences of the kind of which he was convicted is low. It is now 41 years since the offence was committed and there is no evidence that he has committed any similar offences since the disqualifying offence. There are no reports of the applicant having been the subject of a complaint or any allegations of inappropriate behaviour towards children or young people. The assessment of risk is a task within the domain of the Tribunal. Sometimes the Tribunal is assisted by expert evidence in relation to that but the golden rule about prediction of risk is usually based upon past events and whether there has been any change since those events occurred which would mitigate the risk of those events being likely to reoccur. In this matter there are no reports of any recurrence in the 41 years since the offence, the applicant has expressed his remorse for breaking the law, it is unlikely, in the Tribunal's assessment, that there would be a repetition of the offence or anything like it, since there has been 41 years of offence free behaviour and the circumstances in which the offence occurred are quite unique to the applicant.
Subparagraph (j) of section 30(1), "Any information given by the applicant in or in relation to the application". The applicant has provided information to the Tribunal including a copy of the Court papers and the statement of the victim. Annexure A to the Application which has been previously referred to, sets out the reasons why the applicant says he wishes the Tribunal to make an enabling order and sets out with respect to the applicant quite clearly what is currently his understanding of the offence.
The next matter under subparagraph (k) of section 30(1), is, "Any other matters the Children's Guardian considers necessary". The respondent's submissions identify that no further submissions in relation to that subheading is required, none are raised.
The respondent's submissions identify that if the Tribunal is satisfied that the applicant has rebutted the presumption that he imposes a risk to the safety of children and if the Tribunal is considering making an order enabling the applicant to work with children, then section 30(1A) is required to be considered. The test to that subsection has been already referred to in these reasons, but essentially it is a twofold test the first limb of which is whether a reasonable person would allow his or her child to have direct unsupervised contact with the applicant. A reasonable person knowing of the applicant's offence and being aware of all the facts that the Tribunal has before it, in the Tribunal's opinion, would allow his or her child to have direct unsupervised contact with the applicant.
The other matter to be considered is whether it is in the public interest to make an order if the Tribunal is of the view that an order should be made. The applicant is now 59 years of age going onto 60. His work history includes a variety of types of work. None of them are highly qualified with respect to him, and a Working With Children Check clearance will open up a number of categories of work, particularly the one where he seems to want to work, in school maintenance.
It is submitted by the respondent that it is in the public interest that the applicant be given an opportunity to work in a job for which he has the skills and experience and which would ultimately benefit the community. Whilst that is not an exhaustive examination of the public interest, it is clear that the legislature has included this provision in order to ensure that before the Tribunal grants an enabling order, the public interest is considered, and in the respectful opinion of this Tribunal the public interest would be served by the making of an order if the applicant has otherwise discharged the presumption, and the onus on him to discharge the presumption that he is a risk to children.
It is submitted on behalf of the respondent that the applicant has successfully rebutted the presumption that he poses a risk to the safety of children. The Tribunal is not limited to the evidence which is adduced on the part of the party and it is the Tribunal's view, consistent with High Court authority which is referred to in the previously referred to decisions, that evidence which is in support of the applicant's position should be given regard to despite the fact that it may not have been adduced by him. Whilst the onus is carried by the applicant, the evidence to rebut the presumption can be found in a number of sources including those documents which are filed and marked as Exhibits R1 through to R4 in these proceedings.
The applicant if granted a clearance may work with children of any age and no conditions may be imposed on the grant of that clearance. For the purposes of these proceedings it is sufficient to observe that the evidence establishes that there is not a real and appreciable risk of harm to children if the applicant is able to work with children. Having regard to all of the evidence it is the Tribunal's opinion that the applicant has discharged the onus to prove that he does not pose a risk to the safety of children. Thus the Tribunal is satisfied that the applicant does not pose a risk to children.
On the balance of probabilities and taking into account all the considerations required under section 30(1) of the Act and the matters referred to in section 30(1A) of the Act, and having regard to all of the material that is before the Tribunal, it is concluded that the applicant does not pose a risk to the safety of children and should receive a Working With Children Check clearance.
In those circumstances the Tribunal makes a declaration that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of carnal knowledge of which he was convicted in 1976. That will be the order made by the Tribunal.
Do we need to make an order requiring the Children's Guardian to issue a clearance?
BALDWIN: The Children's Guardian will issue once they receive the copy of the order from the Tribunal registry.
SENIOR MEMBER ANDERSON: I think I have sometimes made an additional order that the Children's Guardian grant within a certain period of time the clearance, but I've never really heard submissions about that from the Guardian so I'm not sure what their internal procedures are.
BALDWIN: They usually do it straight away, as soon as they receive the notice.
SENIOR MEMBER ANDERSON: If there's any problem with it, then it can be relisted for the purpose of that additional order. But for those purposes CSZ, we've made a declaration you're not to be treated as a disqualified person and therefore you should receive a Working With Children Check clearance once the Children's Guardian receives notice of that order from this Tribunal. So that, in simple language, is the effect of what I've just said, but because the legislation is framed the way it has been framed, I considered it necessary to go into that sort of detail to identify why it is that we consider you should be able to work with children.
APPLICANT: Thank you so much.
SENIOR MEMBER ANDERSON: Thank you for coming along and spending time here to do it. It's a requirement of the legislation this happens and in your situation it's probably a bit of excessive bureaucracy in your life, you might consider it that way, but it's there for the protection of children in other circumstances--
APPLICANT: Yeah, I understand.
SENIOR MEMBER ANDERSON: --and in this particular case we're quite satisfied you're not a risk to the safety of children and so therefore you should be able to work with them.
APPLICANT: Thank you.
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: 07 June 2018