DAS v Children's Guardian

NCAT Administrative and Equal Opportunity|2017-09-14

Introduction

The applicant, DAS, is a 59 year old Australian Aboriginal man who seeks an enabling order, pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act). The applicant seeks an enabling order so that he can be granted a working with children check clearance (clearance) and continue to work in his role as a Drug and Alcohol Transport Field Officer. He has been employed in this role since 2003.
In May 2016, the applicant made an application to the respondent, the NSW Children's Guardian, for a clearance: see WWC Act, s 13. The respondent refused that application in July 2016, because the applicant is a "disqualified" person for the purpose of that Act: see WWC Act, s 18(1). He is a "disqualified person" because, on 16 January 1978, he was convicted, on a plea of guilty, of an offence, contrary to s 72 of the Crimes Act 1900 (NSW), of "attempt unlawfully and carnally know" a girl who was 14 years of age: see WWC Act, Sch 2, cl1(1)(i) and (ab). He was fined $100.
The applicant did not receive Notice of the respondent's refusal until February 2017, as the respondent did not have the applicant's correct contact details. A further Notice of refusal was subsequently sent to the applicant's correct address in February 2017 and the applicant filed his application with the Tribunal on 11 April 2017.
In these proceedings, by reason of the applicant's 1978 conviction, he is presumed to pose a risk to the safety of children unless he proves to the contrary: see WWC Act, s 28(7).
The applicant denies he committed the offence as charged, but accepts he signed a typed statement prepared by police in late December 1977 and that he pleaded guilty to the charge on the advice of his solicitor. In any event, he submits he has discharged his onus, because in the intervening 40 years since his conviction he has not committed, or alleged to have committed an offence of a similar kind.
The respondent neither opposed, nor consented to the orders sought by the applicant. At the hearing, the solicitor for the respondent, Mr J Harris, explained that the respondent had adopted this position after being served with a copy of the expert report of Ms Chelsey Dewson, Forensic Psychologist, filed by the applicant.

Relevant WWC legislative scheme

The WWC Act came into force on 15 June 2013. The objects of the Act are set out in s 3 as follows: "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."
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.
The word "children" is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
Subsection 8(1) of the 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. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
Subsection 9(1) contains a similar prohibition on an employer from 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.
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. It is not for the Tribunal to determine whether the work the applicant undertook and seeks to continue to undertake is child-related work. However, a clearance, if granted, is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
Section 18 prescribes how the respondent is to determine an application for a clearance. Subsection 18(1) deals with applicants, who are "disqualified persons." That section relevantly 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, …"
As can be seen from the terms of s 18(1), where a person is a "disqualified person" the respondent must refuse that person's application for a clearance. That is, in such circumstances the respondent has no discretion and can make no further enquiries, as a decision to refuse the application for a clearance is mandatory in such circumstances.
There is no dispute that the applicant is a "disqualified person" by reason of his 1978 conviction.
As we have already noted, s 28(7) of the WWC Act contains a statutory presumption that the applicant poses a "risk" to the safety of children, unless he proves the contrary.
The Tribunal has accepted the word "risk", in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms: "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.""
Section 28(5) provides that an applicant for an enabling order must fully disclose to the Tribunal any matters relevant to the application.
Section 30 of the WWC Act sets out the factors the Tribunal must consider in determining an application for an enabling order. That section relevantly provides as follows: "30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person … , (b) the period of time since those offences … and the conduct of the person since they occurred, (c) the age of the person at the time the offences … occurred, (d) the age of each victim of any relevant offence … 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, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (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."
Section 36A of the WWC Act makes provision for the respondent to exchange working with children check clearance information with bodies in other jurisdictions that administer working with children check clearances.
In CHB v Children's Guardian [2016] NSWCATAD 214, at [107], the Tribunal held that, in accordance with a similar provision in the equivalent Victorian legislative scheme, s 30(1A) only applies in circumstances where the Tribunal is considering making an order enabling the applicant to work with children because it is satisfied the applicant does not pose a risk to the safety of children: see also ZZ v Secretary, Department of Justice [2013] VSC 267. It is not disputed that this is the correct approach to be taken to the application of s 30(1A), where the Tribunal is satisfied that a disqualified person has discharged his/her s 28(7) onus.
Finally, s 28(8) of the WWC Act provides that an enabling order may not be made subject to conditions.

Evidence before the Tribunal

In support of his application the applicant, relied on: 1. an affidavit sworn by him, on 2 June 2017. Attached to that statement was a reference from the Chief Executive Officer of his employer, dated 30 March 2017, and a brief statement from his partner of 40 years, dated 2 June 2017; and 2. the expert report of Ms Chelsey Dewson, Forensic Psychologist.
The respondent relied on two small bundles of documents, filed on 4 May 2017 and 6 June 2017. Included in these bundles were copies of responses received by the respondent pursuant to a request made to the relevant Local Court where convictions were entered against the applicant in 1978 and 1979 and requests the respondent made to other relevant organisations, under s 31 of the WWC Act (i.e. such requests request were made to the applicant's employer, the NSW Police Sex Crimes Squad, the relevant Local Area Command of the NSW Police Force and the Department of Family and Community Services).
At the hearing, the applicant gave oral evidence and was cross-examined by Mr Harris, solicitor appearing on behalf of the respondent. The hearing was scheduled to occur at the Local Court in Port Macquarie. Due to a late flight cancellation on the morning of the hearing we were unable to leave Sydney and travel to Port Macquarie. However, the Registry of the Tribunal and Registry of the Port Macquarie Local Court were able to make arrangements for the hearing to be conducted via video link between their respective hearing rooms. The applicant, the applicant's legal representatives and the respondent's legal representatives were all in Port Macquarie and ready to proceed. With their agreement we proceeded to hear matter via video.
Ms Dewson also gave oral evidence at the hearing and was cross-examined by Mr Harris. Ms Dewson gave her evidence by telephone.

Consideration

We note the jurisdiction of the Tribunal in matters under the WWC Act 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 any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.
The term "safety to children" is not defined in the WWC Act, but includes the sexual and physical safety of children, and also their safety from conduct that is likely to cause psychological or emotional harm: see BVM v Children's Guardian [2016] NSWCATAD 65 at [9] - [15] and [67] and BFX v Children's Guardian [2014] NSWCATAD 115 at [19] to [30].
In regard to the matters prescribed in 30(1) of the WWC Act, set out below is a summary of the evidence and our findings in regard thereto.

(a) - The seriousness of the offence with respect to which the applicant is a disqualified person

The applicant's disqualifying offence is his 1978 conviction for attempted carnal knowledge with that of a girl under 16 years of age.
The only material available in regard to his conviction is a record of interview, dated 29 December 1977, between the applicant and an officer of the NSW Police Service. As we have indicated above, the applicant signed each page of the two-page record of interview. The record of interview records the applicant being asked what he was doing on the afternoon of 20 December 1977. The applicant is recorded as having said he was at the swimming pool with some mates when a couple of blokes came and told them that the victim was down the other side of the sailing club with all the boys. He is recorded as having said that they all left the pool and walked down from where they were. He was asked whom he was with on this day and he gave the names of two of his friends, Mr A and Mr B. He was asked what happened when he got there. He is recorded as having said that the victim was "laying on the grass with her pants off" and another friend, Mr C, was trying to have sex with her. The applicant is recorded as having said that when Mr C had finished having sex with the victim, he tried to have sex with her but he couldn't do so because he could not get an erection. He was then asked what he did next. The applicant is recorded as having said that he went back down to the river and he did not see the victim again. He was asked whether he knew the victim prior to that day. The applicant is recorded as having responded that this was the first time he had seen the victim. He was asked whether he knew her age to which he responded he did not know. He was then asked how old he thought she may have been. He is recorded as having responded "about 14".
In his affidavit in these proceeding, the applicant said he remembered hanging out with his friends, Mr A and Mr B, at the local pool on the day in question. He said one of the guys he was with said words to the effect that Mr D was "with a girl" and a group of them rushed down to the sailing club on the river to spy on him. He said they were all about 18 to 19 years old and they wanted to tease Mr D, but they didn't end up having any laughs.
He said that when they got to the sailing club they saw Mr D coming out of the scrub. He said they asked him "where's your girl?" and Mr D said: "she's gone". He said they never saw the girl, but a few days later the "coppers" came around to his place and knocked on the door. He said he figured Mr D "must've told them we was there" as he "didn't want to take it on his own". He said he didn't know what was going on, but went to the police station where the police told him there was a girl in the street with dirt on her. He said he told the police he didn't do it. He said he tried to tell the truth. He said the police thought it was a big joke and remembers them laughing and joking and making a big thing of it. He said he felt nervous and frightened and if he didn't confess then this would go on all day. He said he told the police words to the effect of: "I'll just go with what you said".
In his affidavit, the applicant went on to say that he did not see the girl at court and there was no mention of the words "carnal knowledge". He said that had this been mentioned he would have known about that "because one of my brothers went to jail about it when I was 11 or 12 years old." He said that his lawyer told him to plead guilty which he did and he was convicted and fined $100. He said he had been shown the police documents contained in the respondent's bundle of evidence and accepted that he had signed the statement, but he denied that he did what was recorded in the documents. It was his evidence that he signed the statement "to get out of there". He also said that when he saw the police documents, this was the first time he knew the name of the victim of the offence. He went on to explain that he knows the victim and she happened to be the mother-in-law of his niece.
In his oral evidence at the hearing, the applicant explained he told the police about Mr D and that when they got to the sailing club, Mr D told him and Mr A and Mr B that the girl had gone. He said the police prepared the statement in their own words and he only had a quick glimpse at its contents before he signed it. He said he was not aware that the police were alleging he was trying to have sex with the girl (the victim). He also said that he did not see Mr C that day and he assumed he must have been with Mr D.
The applicant explained that he signed the statement in order to get out of the police station as he said he felt intimidated. It was the first time he had been subject to questioning by police at the police station. He said the police officers interviewing him told him he could sign the statement, or be there all day. He said he was not threatened by the police officers, but he was fearful of being locked up.
In regard to the victim, the applicant said he sees her occasionally and was speaking to her only the other day. However, he has never mentioned the incident to her. Nor has she mentioned it to him. Based on the applicant's account of events in these proceedings, this is understandable if he did in fact not understand or know, until he made his application for a clearance, the nature of the offence he pleaded guilty to in early 1978, or the name of the victim. At the same time, it does not mean that the December 1977 police typed record of interview of the applicant had been fabricated. It is almost 40 years since these events occurred and we doubt the applicant's recollection of events are as clear as he claimed.
We are nevertheless satisfied the applicant may have felt intimidated when interviewed by police back in December 1977 and may not have fully understood what he was being asked. However, in light of having signed the two page record of interview and pleading guilty to the offence as charged we are unable to accept the unsupported assertions he now makes that the acts and omissions the subject of his 1978 conviction for attempted carnal knowledge did not occur. Accordingly, we are satisfied that the fact of his conviction is evidence of the essential elements of the offence of which he was charged (i.e. attempt unlawfully and carnally know a girl above the age of 10 years and under the age of sixteen years, to wit the age of fourteen years). The applicant does not dispute that he was convicted of this offence. As pointed out by the respondent in the written submissions, the essential elements of the offence alone would render the offence as being serious. Again, the applicant does not dispute this. The offence, however, it is not at the serious end of the scale of seriousness for such offences - it is at the lower end. This is reflected in the penalty that was imposed.

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

It is almost 40 years since the commission and conviction of the applicant's disqualifying offence.
Not long after the conviction for the disqualifying offence the applicant was convicted for a number of offences that involved violence. But, since then he has had steady employment and has been in a stable relationship with his partner for 40 years. They have three children who are now adults and they also have three grandchildren.
Convictions - In June 1978, the applicant was convicted of an offence of assault and unlawful trespass. He was fined $150 on the assault charge and $100 for the trespassed charge. In February 1980, the applicant was charged with a number of assault charges relating to an unlawful assembly.
In April 2000, the applicant was charged with an offence of goods in personal custody reasonably suspected of being stolen. The charge related to stolen milk. It was found proven but dismissed without a conviction having been entered against the applicant. We have dealt with the applicant's criminal convictions in more detail below.
Work life - In his affidavit the applicant explained that in about 1981, he commenced a five-year carpentry course. He said he set up his own company, which he had for about four years until 1989 when the company folded. He said that over the years he had jobs here and there in the building industry. As we have already noted, in July 2003, he commenced working as a Drug and Alcohol Transport Field Officer with the local Medical Centre where he has continued to work until his application for a clearance was refused. He said he has always enjoyed his role and he has a good name. He said he thinks he has always done a good job providing a service to the community. He explained that in his most recent position he has been driving people to and from medical appointments. Sometimes he is required to transport people to other towns for specialist appointments. He has had this position for 14 years and explained that when he transports children between their school and an appointment they are always accompanied by a responsible adult. He said he gets along well with children, "except the ones that sit up the back that won't wear their seat belts".
In his oral evidence, the applicant explained that he had no plans to do any other type of child-related work. In this regard we note the reference of the Chief Executive Officer (CEO) of his employer, the local Medical Centre. In his reference, the CEO said that during the applicant's employment with the organisation there had been no documented concerns, or issues around his conduct or performance. He said the organisation was satisfied with the applicant's "experience of working with children and vulnerable persons, as there have been no issues or concerns raised".
The CEO said that the applicant was a model employee, "who takes to direction quite well and can perform his daily duties with minimal guidance and mostly completing these duties in a timely manner". The CEO also said that as he had indicated to the applicant previously, the organisation would support him through the process of obtaining a clearance as much as they could, until such time a final outcome has been reached in regard thereto. It was noted that the organisation was fully aware of the applicant's 1978 conviction and that this is the reason why he was having difficulty in obtaining a clearance.
Of concern to the respondent is the CEO's remark that there had been no documented concerns or issues around the applicant's conduct or performance while employed by the organisation, when in May 2006, he was suspended with full pay, after it was discovered he had been accessing pornography on the Internet while at work. The alleged access occurred on a specific day in April 2006. The applicant's employer interviewed him in regard to that access, on 17 May 2006. In his interview, the applicant explained that he received "Jockaroo" emails from a person called Jan that included incidental content. He said he was "curious" about that content so he clicked on the links. He said that most of his access to inappropriate material was via emails although, he also accepted he had made some "direct hits". He went on to explain - "these sites I have made direct hits on did not contain information relating to children under the age of 16 years of age". On 23 June 2006, the applicant's employer disciplined him by suspending his use of the Internet for a further three months from that date. He was also required to pay back $3.71 in wasted work time and given a first and final written warning.
In his affidavit the applicant said: "21. I only have some memory of the 2006 issue with my computer usage. We just had access to a shared computer in the shed. A few of us used it. I used it mainly to play solitaire, [x] would leave it there for me until I got a call for transport. We could have had logins back then, I don't really remember. Usually I just started using computer, didn't log in just picked up where someone had left off. I had email, didn't really understand how to use that's why I asked for more computer training. 22. I remember when I would use the computer other windows would pop up on this site of the screen with explicit material on it, like advertising on the solitaire site. Sometimes I got curious and looked at it. It was just advertising or previews. If you clicked on it, another window would open, and then another. It was easier to just let it end and then close it. There was an investigation, involving another three people and I remember having to pay just a bit over three dollars as the sanction. 23. I have never made this mistake again in the workplace but I did ask for more computer training in 2010 and 2011."
In his oral evidence the applicant reiterated that which was contained in his affidavit. He did not deny obtaining access or the circumstances in which he did so. He also agreed in cross examination that he may have looked at pornography sites a few more times than what was the subject of his employer's investigation. However, he was emphatic that he has not accessed it again. When asked why, he said he was very embarrassed about having done so in the first place. He said others were also doing it at the same time and while he only paid $3, they were required to pay $40.
In his oral evidence, the applicant also explained that he did not have a computer at home. However, he had recently acquired a laptop and has not used it to access pornography.
The respondent contends that the applicant's conduct in deliberately accessing pornography at work, in breach of his employer's Internet policy, shows that he exercised poor judgement and a lack of self-control, in a sexual context. In his written submissions, the applicant accepted that his use of his employer's computer to access pornography shows poor judgement and lack of self-control. However, he went on to submit that as this occurred over a very limited period of time it was not otherwise reflective of him having poor judgement and a lack of self control generally.
We accept the applicant's evidence in regard to his access to pornography and accept that this access was for a limited time. There is no evidence of the applicant having accesses pornography from other sources and we accept his evidence that he has not sought to do so again at work or otherwise.
Family - in her brief statement the applicant's partner of 40 years described the applicant as a "wonderful father" to their children and also their grandchildren. She said that she "honestly believed [DAS] did not pose a risk to any and all children, even including adults". She said: "… [He] is a quiet and gentle person and always has been. He is by means a family man, always putting the needs of his family first before anyone, including himself. We have had our struggles in our early years in life, as there would be times where it was difficult putting bread and butter on the table as a meal. However, it was always at the applicant that would manage to make sure that I and our children were blessed with the things we need it.''
Included in the material filed by the respondent is a report that was made to the helpline of the Department of Family and Community Services, on 3 September 2002, concerning to the applicant's youngest daughter who was then aged 12. The reporter alleged that the applicant's daughter had continued unexplained absences on Thursdays and Fridays, unclean, unwashed clothes and hair and poor personal hygiene. However, the allegation was not further investigated. Nor is there any evidence that the applicant was made aware of these concerns.
Instead, the evidence is that the Department wrote to the reporter, on 19 September 2002, stating that "no immediate safety concerns noted… insufficient information in the report to assess the level of risk.''
Hence, for the purpose of these proceedings, we place very little, if any, weight on the allegation contained in the abovementioned report of the Department of Family and Community Services.

The applicant was 19 years of age at the time of the disqualifying offence.

(d) the age of each victim of any relevant conduct at the time they occurred and any matters relating to the vulnerability of the victim

The victim was 14 years old. Other than her age, then are no matters relating to vulnerability.

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

The applicant was five years older than the victim and at the time the applicant did not know the victim.

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

As we have noted above, in his record of interview with police, in December 1977, the applicant is recorded as having said that he believed the victim was aged about 14.

(g) the person' s present age

The applicant is now 59 years of age.

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

As noted above, the applicant was convicted of offences of violence in June 1978 and August 1979. He also has an offence of driving while his license was cancelled and being over the prescribed concentration of alcohol. These offences occurred in February 1979. The only other offence of which the applicant was found guilty was an offence, in January 2000, involving goods in custody that were suspected as having been stolen. The goods the subject of the charge was milk.
1978 offence - The applicant pleaded guilty to this offence and the police fact sheets described the offending conduct as having occurred at 11.35pm on 20 June 1978. The police had attended the local high school where there was a disco in progress for the benefits of the pupils. When they arrived, there was a "brawl still in progress and this was happening outside the hall itself." The fact sheet goes on to say that several other youth decamped from the hall and were chased by the officers and apprehended. The three defendants (including the applicant) before the court were those who were apprehended. It was noted each defendant was affected by liquor. It was alleged that they had assaulted a man by hitting him a number of times on the face with their fists. As a result of the assault the man suffered minor swelling to his left eye and face, but he did not require any treatment. The solicitor for the applicant is recorded as having told the court that the applicant had informed him he was waiting outside the hall with his brother and another man. They were waiting for their younger brother when they saw the victim of the alleged assault hit their younger brother with his fist. The applicant's solicitor emphasised that the assault had not been premeditated.
In his affidavit the applicant said he remembered being at the disco and waiting with another brother to pick up his younger brother who was at the disco. He said they were waiting so that they could take him home. He denied assaulting anyone and said he did not remember there was a "brawl" and he didn't remember seeing a fight. He said that the "cops" nevertheless picked them up on the corner when they were walking away.
Again, in light of the applicant having pleaded guilty to the offence we do not accept his denial of the alleged offending.
1979 offences - the police fact sheet states that the applicant was one of "a large group of aboriginals who took part in an unlawful assembly" in the local town on the evening and early hours of 17 and 18 August 1979. The applicant was convicted of three offences of resisting arrest, two offences of assault and two offences of malicious injury. The resist arrest offences occurred around 12.25am of the morning of 18 August. The police fact sheet states that at this time a number of assaults upon white males by Aboriginals had taken place in the vicinity of the sailing club. The police officers observed the applicant kicking and punching a white youth in the vicinity of the car park of the club. The youth was screaming out in pain. Two of the police officers ran to the scene and took hold of the applicant by each arm. They were then joined by another police officer - he took hold of the applicant from the back. The applicant was informed that he was under arrest and when the police officers attempted to move the applicant towards the police truck, he resisted them violently.
The assaults occurred around the same time on the morning in question. The first assault was committed against a patron of the sailing club as he was walking along the main street. It was alleged that the applicant and a female had attacked him. The applicant was alleged to have punched and kicked the victim. The Police fact sheet states that they ceased doing this when they were told by one of the others present that "is not the one, he didn't do it". The other assault occurred shortly thereafter and the victim of this assault was and man who operated a restaurant business within the town. It was alleged that as he was in his car when the applicant approached him and punched him. The fact sheet states that when the applicant was questioned, he admitted to punching the victim and said he did not know him previously. When asked why he had committed the offence the applicant is alleged to have replied: "because he was white and he was there".
The malicious injury charges related to a motorcycle and a Council bench seat the applicant and another offended damaged as they were leaving from where they had assembled with other that evening. The amount of damage caused to the motorcycle and the bench seat was $278.40.
In his affidavit the applicant said that there was a "riot" in the town on that particular evening. He said he was 21 and that he was there - "I got caught up in it". He went on to say: "… [We] were walking down the middle of the street, it would have been late, about 11PM or so. We were being followed by a bunch of white kids, who were kicking bins, smashing shop windows and making noise. we were angry about young aboriginal kids being bashed up by white men in the park and nothing being done about it. I was charged with a heap of offences, so were the other guys. We all had big hair, fuzzy hair we looked the same, especially at night. A few days later, the police did come to arrest me, and I went with them. There were three detectives questioning me at the station. It was scary, intimidating. One was being smart, he said to me 'come on, I'll take you out the front of the station, punch the shit outa ya". At court, the lawyer just told all of us to plead guilty. We never had a chance to explain our side of what happened, to challenge exactly what each of us were accused of doing. The magistrate fined me."
As we have already note, the 2000 offence of having goods in custody suspected of having been stolen related to milk. In his affidavit, the applicant explained that the police had stopped him while he was driving home from the coast. He said he had a few cartons of milk and some oysters in his car and did not know that the milk had been stolen. He said a "young fella" had given him the milk for his kids and the magistrate through out the charge. He recollected the magistrate being very angry and telling the police "not to bring anything like that again in front of him".
The applicants 1978 and 1979 offences were serious in that they also involved violence. However, he was young and he has not committed any offences of a similar kind since that time. His 2000 offence was a minor transgression.
In our view, the applicant's total criminal record cannot be described as being very serious. Indeed, his most serious offending ceased almost 40 years ago.

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

The applicant acknowledges that an act of carnal knowledge if repeated, would be devastating on a child or young person. However, the applicant submits that the likelihood of him engaging in such conduct is very low. In this regard he relies on the forensic psychologist report of Ms Dewson.
Ms Dewson undertook a comprehensive assessment of the applicant. She interviewed him via video link and assessed his mental health and personality functioning by administering the Millon Clinical Multiaxial Inventory -IV (MCMI-IV). She also assessed risk of reoffending by using the well-established risk assessment tools, the Static-99R and the Risk for Sexual Violence Protocol (RSVP), developed by Hart, Kropp, Laws, Klaver, Logan and Watt.
In her report Ms Dewson concluded that the applicant's risk to children is "very low" and that there is no indication that the applicant is a "significant risk" to children.
In her report, Ms Dewson said the applicant had not demonstrated any indications of psychological phenomena and he did not present with any indications of psychopathology. She noted that he had not engaged in any mental health treatment. In regard to the MCMI-IV that was administered to the applicant, Ms Dewson noted that there were no significant elevations to suggest that the applicant experiences a personality disorder. However, his profile revealed slightly elevated score on the antisocial, schizoid, turbulent and narcissistic scales, which were suggestive of traits rather than problem patterns of functioning. Ms Dewson went on to say that, in her opinion, the applicant's results were somewhat incongruent with his presentation at the time of his interview. She said it is likely that he exhibited some of the traits, but to a lesser extent, than what she outlined. Ms Dewson concluded by saying that after reviewing the questions that had been endorsed by the applicant it appeared to her that his emotional dysregulation related to his adolescence rather than his behaviour as an adult. She concluded by saying there was no indication of any ongoing conflict or violence for the applicant and hence his MCMI-IV responses did not appear significant to his risk.
In regard to the Static- 99R test, Ms Dewson said the applicant's score was 1. However, she went on to explain: "56. In cases where the offender has had a substantial period at liberty in the community with an opportunity to sexual re-offend but has not done so, their risk of recidivism is lower than those who have more recently offended. Generally, for every five years that an offender is in the community without a new sexual offence, their risk of recidivism roughly halves. Given that [DAS's] offence occurred approximately 30 years ago and he has not known to have sexual reoffended, his risk of further sexual offending in the future is likely considerably lower than indicated above. The following statistic statistics are offered based on [DAS's] Static 99R score of 1, however, his time in liberty without recidivism is considered in his overall assessed level of risk outlined at the end of the risk assessment section of this report."
In her oral evidence, Ms Dewson noted that the applicant's offence occurred some 40 and not 30 years ago. However, she said this did not alter her conclusions.
In her report Ms Dewson acknowledged that there were limitations to only using the Static 99 tool to assess risk. Hence, the dynamic tool, the RSVP is used. She explained that there are several dynamic risk factors that have been empirically linked to sexual recidivism. Of these, the only one relevant to the applicant was extreme minimisation and denial of sexually abusive behaviour.
Ms Dewson's assessment of risk was based on the applicant having committed the disqualifying offence and not on his denial of such offending in these proceedings. In her oral evidence, Ms Dewson explained that extreme minimisation and denial alone were not indicative of risk, one had to also consider the applicant's behaviour since that time.
In her report, Ms Dewson referred to eight protective factors that have been identified as being associated with the reduction of sexual recidivism. Those that were relevant to the applicant she said were as follows: " - Healthy sexual interests; - Capacity for emotional intimacy; - Goal directed living; - Constructive social and professional support network; - Good problem-solving; - Engagement in employment; and - Sobriety."
Ms Dewson went on to say: "63 … [Although] he has a criminal conviction for a sexual offence against a child, this occurred within the context of [DAS] also being young and I do not, therefore, consider [DAS's] offending to be overly indicative of deviant sexual interest. …"
Ms Dewson also noted that the applicant had been disciplined vocationally for inappropriately utilising the Internet to access pornography and expressed an opinion that any future sexual indiscretions by the applicant may be in the context of needing to meet his sexual wants in an inappropriate forum such as accessing pornography in public. However, in the "unlikely" event that a sexual re-offence occurred, it is likely to be against a post-pubescent female.
During cross-examination, Ms Dewson was informed that in his oral evidence the applicant had admitted that to accessing pornography on more than one occasion while he was at work. Ms Dewson said that while such access fell within the normal range of access it was nevertheless inappropriate in the circumstances. When asked wether the applicant's admission of further incidents of access was indicative of some risk, Ms Dewson said her hypothesis remained the same. She went on to say that given the applicant's evidence of no further access after being disciplined was indicative of him having learnt from that.
We accept the evidence of Ms Dewson and her conclusion that the likelihood of the applicant re-offending as he had in 1977 is very low. We also find that the likelihood of the applicant acting violently as he did in 1978 and 1979 is also very low. We also accept the applicant has learnt from being disciplined in regard to his access to pornographic material and is unlikely to do so again.

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

We have dealt with the evidence relied on by the applicant above.

(j1) any relevant information obtained in accordance with s36A

The respondent did not file and serve any relevant information under s36A.

(k) any other matters that the children' s guardian considers necessary,

As we have noted, the respondent neither consents nor opposes the orders being made.

Has the applicant discharged his onus?

As we have noted, the first issue for us to determine is whether, having regard to the material before us and taking into account the matters/factors prescribed in s 30(1) of the WWC Act, the applicant has discharged his onus and rebutted the statutory presumption that he poses a real and appreciable risk to the safety of children today if he were to be granted a clearance to work in child related work. In making that determination we must also have regard to the paramount consideration in s 4 WWC Act (i.e. the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration).
For the reasons set out above, we find that the applicant's 1977 sexual offending was serious and should it be repeated it would have a devastating effect on a child or young person. The applicant does not dispute this. However, in the intervening 40 years the applicant has not committed an offence of this kind again. His violent offending in 1978 and 1979 are of concern even though they did not involve a child or young person. Again, the offences occurred almost 40 years ago and there is no evidence of the applicant offending in the same manner again.
The applicant's sexual offending and violent offences were committed in his latter teenage years and very early twenties. As Ms Dewson pointed out, the evidence is that the applicant has been a stable and pro-social member of his community for many years since then and his vocational services have been providing a dual benefit to him and the patients he transports on behalf of his employer. He has been in a stable relationship during this time and has three grown-up children and three grandchildren. Furthermore, with the knowledge of his disqualifying offence, his employer is supportive of his application before the Tribunal.
The applicant's 2006 access to pornography is of concern. However, there is no evidence that he accessed pornography that involved persons under the age of 18. We have accepted his evidence that he was very embarrassed about having accessed pornography on his employer's computer and that he has not sought to access pornography again.
Accordingly, we have accepted the opinion expressed by Ms Dewson that the applicant's risk of offending today is very low.
Having regard to all the circumstances, the factors in s 30(1) and the paramount consideration in s 4 of the WWC Act, we are satisfied that the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children.

Reasonable person test: s 30(1A)(b)

As noted by the applicant, in order to properly consider this test, a "reasonable person" would need know about the disqualifying offence, the circumstances surrounding the applicant's subsequent denial of the offending, the applicant's entire criminal history, the length of time since those offences occurred, the applicant's pro social behaviour since that time and the views and expert assessment of Ms Dewson.
The respondent did not disagree with this, but submitted that in order for us to find that a reasonable person would allow his or her child to have direct, unsupervised contact with the applicant whilst engaged in child-related work we would need to make a finding as to whether the applicant's denials were true or not.
In our opinion we do not need to make such a finding. As pointed out by Ms Dewson, the fact that an applicant minimises or denies the offending conduct they were convicted of is not of itself necessarily indicative of risk. We understand it is not unusual for an offender to minimise his/her offending conduct and we must have regard to what an applicant has done since his offending conduct.
Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of the same information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work. In this regard, such persons would note that the disqualifying offence and the other offences of violence occurred some 40 years ago and since then the applicant has been employed and has been in a stable relationship with three grown up children and three grandchildren. Of concern to such a person would be the 2006 disciplinary action of his employer for inappropriate use of his work computer. However, it would also be noted that this occurred over a relatively short period of time, the applicant has not acted inappropriately for the last 10 years and his employer is supporting him through this process.

Public Interest: section 30(1A)(b) of the Act

In Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term "public interest" in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said (footnotes and citations omitted): "[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[…] The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[…] [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'.[…] The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body'.[…] [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest."
In ZZ v Secretary, Department of Justice [2013] VSC 267, Justice Bell of the Supreme Court of Victoria referred to the above decision and observed at [202] as follows (footnotes and citations omitted): "[202] While decisions of the tribunal have correctly emphasised that the main purpose of the Working with Children Act is the protection of children from harm, they have also acknowledged the relevance and importance of rehabilitating offenders, their right to work and other similar considerations.[…] So, in MH,[…] her Honour Judge Harbison said the Working with Children Act did not prevent all persons with a serious criminal record from ever working with children again. Rather: "It is designed so that an informed assessment can be made in every individual case of the risk of harm to children arising out of his or her past behaviour. It places a heavy burden on the decision maker, to make an assessment as to what is likely to happen in the future, based on what is known to have happened in the past. The assessment must be rigorously made, given the aim of the legislation, which is the protection of very vulnerable children from sexual harm or violence.[…]"
In his submissions the applicant accepts that there is a public interest in protecting the safety, welfare and wellbeing of children and young people. As we have noted, it is also the paramount consideration in the operation of the WWC Act.
The applicant went on to submit, along the lines of the abovementioned remarks in ZZ, that there is a public interest in allowing persons who have had past difficulties - particularly where those difficulties arise during adolescence and early adulthood - to redeem themselves and to allow society to regain confidence by a demonstrated track record of pro social behaviour and a lack of recommission of offences. In this regard it is submitted that given the applicant's pro social behaviour for the last 40 years and his failure to commit any further offences during that time or come to the attention of the authorities for a significant period of time, we could be satisfied that it was in the public interest to make the orders sought.
Having regard to material before us, we are satisfied that it is in the public interest to make the orders sought.

Conclusion

For the reasons set out above we make the following orders: 1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of attempted carnal knowledge of which he was convicted on 16 January 1978. 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a working with children clearance.

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: 27 September 2017

Child Protection Legislation Amendment Act 2015(NSW)

At a glance

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Decision date

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Judgment (21 paragraphs)

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Legislation Cited (3)

Cases Cited (8)