The applicant's evidence and overall approach to presenting his application is that he is a very different person now to the person who committed the offences in 1994 and engaged in the conduct referred to at [32] above. He makes the following points in his written statement/submission:
"My criminal record has been exemplary since 2008, I haven't even had a driving offence.
I now see that my behaviour was unacceptable, and I deserved to be a banned person.
I became a Christian in 2010 and having put my faith in Jesus I have done lots of work changing the person I am.
My ex-wife could see these positive changes and gave me custody of my son… about 8 years ago.
The pastors have been my guidance and have taken on the role of a councillor/[psychologist].
I have my life on track with various activities and have become an active member of the church.
…
I have a job at a local locksmiths in which I have been for 6 years.
I really enjoy my work and I have plenty of contact with the community through the shopfront.
…
I have been given lots of opportunities with other people's kids over the last 10 years to be a role model and have taken their kids to many sporting [events] as well other events.
…
I'm not by any means a perfect person but especially since I've become a Christian there have been significant changes in my life.
I no longer look to drugs in the tough times, I [now] look to Jesus and his sacrifice that have saved a sinner like me.
…
I have not looked to see any [psychological] help over the last 10 years as I know my faith and my pastors have helped change the direction of my life.
…
In conclusion, [I've] made plenty of changes in my life and I now look at the mistakes I've made in the past and take full responsibility for them.
I would like to be given the opportunity to prove to the public that I'm not a person who would ever put any one child in danger and I would do everything within my power to protect them.
The applicant also gave evidence that if he is granted a clearance he will engage in activities at his local church that require a clearance and that he may also like to coach rugby league and possibly drive a bus.
The applicant in his oral evidence and under cross examination admitted he had acted inappropriately in the past with respect to CD and AB and regrets his actions.
The applicant said he has had ongoing issues with chronic pain and confirmed he has a diagnosis of OCD. He said he is presently prescribed Oxycontin, Endone and Lovam for these conditions. The applicant said he does not take any illicit drugs. He relied upon pathology results dated 26 October 2009, 5 May 2010, 22 June 2010 and 6 October 2010 (Exhibit A3) to show that methadone, amphetamines, cannabis and cocaine were not detected on those occasions. The applicant said he acquired these tests as a result of the reference in the decision of the former ADT on 9 July 2009 (see II v Commission for Children and Young People [2009] NSWADT 178 at [68]) when reviewing the previous refusal to grant the applicant an order that:
"In my view if [DGQ] were able to provide reliable evidence of sustained abstinence from recreational drug use over a reasonable time, say 12 months, he would be able to mount a powerful argument that he has rebutted the statutory presumption that he poses a risk to children."
When asked in cross examination why he had not sought further blood tests in preparation for the hearing, the applicant said there was no need to get more tests since the results in 2009 and 2010 were negative. The applicant also gave evidence that he rarely drinks alcohol.
As set out in [35] above, the applicant gave evidence he has not sought psychological assistance for 10 years. The applicant agreed under cross examination he had in fact seen a psychologist in 2016. He stated this was primarily for assistance with his chronic pain issues but also referenced his OCD tendencies as he did not want them to lead to actions that might exacerbate his pain: for example through excessive scratching. The applicant was asked a number of questions in cross examination and by the Tribunal as to why he had not continued to seek psychological treatment for his mental health issues. The applicant stated a number of times he did not believe he needed this professional assistance given he received support and guidance from his pastors and through his Christian faith. When asked why he had not sought an updated risk assessment from a psychologist, he said he had spoken to his pastors and they had said he did not need to see a psychologist because he/she would not know him as well as they do. He added while he did not see what could be gained from seeing a psychologist, he conceded that now with hindsight it is possible he should have done so to support his application.
[2]
Evidence of Pastor D
Pastor D gave evidence by telephone during the hearing as well as providing a character reference dated 27 March 2018 that forms part of Exhibit A2. Pastor D told us the applicant is part of his church community and a "generous giver" to that community. He said the applicant has been honest with him about the circumstances that led to the applicant not being granted a clearance and also his past history of substance abuse. Pastor D stated in his character reference for the applicant that:
"I have known [DGQ] to be a person of good character, who is generous, humble, acts without judgement to others, puts the needs of others before his own and is careful to do good not harm.
…
He has always acted appropriately and within helpful boundaries towards our son…".
Pastor D gave evidence that the applicant does not seek out interactions with children at church events, has never acted inappropriately with them and can establish a good rapport with them. He said that if the applicant is granted a clearance and with appropriate training, he could envisage him being a leader in the church community.
Pastor D told us he does not have any formal qualifications in psychology. He gave evidence he worked as a Registered Nurse for five to six years and has "learned through life experience" a lot about people.
[3]
Evidence of Pastor H
Pastor H gave evidence by telephone during the hearing as well as providing a character reference dated 9 March 2018 that forms part of Exhibit A2. Pastor H said he has known the applicant for 10 years but has limited contact in recent years due to Pastor H moving out of the area. Pastor H said he cannot recall if the applicant told him the circumstances of the 1994 offences but he may have told him he had had a difficult relationship with his ex-wife, CD.
Pastor H stated in his character reference for the applicant that:
"Over the time I have known [DGQ] there has been no sign of undue interest in being [involved] with children or youth. What has been obvious is a genuine care for people around him, both in and outside the church. I have found [DGQ] to be gentle in nature and protective of the children in the families he is connected to. I have [not] seen nor heard from any child or parent any hint of excessive interest or unwarranted attention.
…
I have found [DGQ] to be no threat to children or youth. In fact I find him to be completely the opposite. If it was not for the needs of those around (sic) he would not bother going through the effort or embarrassment/shame of having the Working with Children ban dealt with. I cannot comment on the past but for the time I have known [DGQ] I have not seen or heard of any action that would suggest he is not trustworthy in this matter".
Pastor H said he had a degree in theology and does not have any qualifications in psychology.
[4]
Submissions of the parties
The central theme of the applicant's submissions is that he is (to use his own words), "a changed person by God's grace" from the person who committed the 1994 offences and engaged in the conduct outlined in [32] above. The applicant relies on the ADT decision in 2009 that while he was refused a clearance at that time, an order was made he could reapply after 12 months for a clearance rather than having to wait 5 years to do so. He acknowledges he could have consulted a psychologist in preparation for the hearing but "I became a Christian…and I am saved by the grace of God".
The respondent submitted the applicant has not rebutted the presumption that he poses a risk to children. Counsel for the respondent submitted:
"In the absence of any evidence as to his current psychological state and abstinence from recreational drug use, the Tribunal could not be satisfied that the lack of any further convictions and the passage of time alone is not sufficient to prove that the applicant does not pose a risk to the safety of children".
[5]
Consideration of section 30(1) factors
The evidence and the Tribunal's findings are now considered under each of the subsection 30(1) factors.
[6]
The seriousness of the offences with respect to which the applicant is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar (section 30(1)(a))
The applicant has been convicted of two counts of assault with act of indecency that are deemed disqualifying offences under Schedule 2 of the Act. As is the case with any indecent assault, they are serious offences but the circumstances of the offences put them at the lower end of seriousness.
[7]
The period of time since those offences or matters occurred and the conduct of the applicant since they occurred (section 30(1)(b))
Twenty four years has elapsed since the disqualifying offences. The applicant's conduct from 1997 to 2008 that time is referred to in detail in [32] above. There is no evidence the applicant has been involved in any improper conduct since late 2008.
[8]
The age of the applicant at the time the offences or matters occurred; the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victims; the difference in age between the victims and the applicant and the relationship (if any) between the victims and the person and whether the applicant knew, or could reasonably have known, that the victims were children (section 30(1)(c)(d)(e)(f))
The applicant was 26 years of age at the time of the disqualifying offence. The victims were aged 20 and 22 years respectively so the applicant was six and four years older than the victims. The applicant did not know either victim and they were not children. The victims were vulnerable in the sense they were young women who should have been able to socialise in a crowd in a public place without being indecently assaulted.
[9]
The person's present age (section 30(1)(g))
The applicant is presently 50 years old.
[10]
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (section 30(1)(h))
The matters set out in [32] above are relevant to assessing the conduct of the applicant since 1994. They include being convicted of breaching an AVO and property offences. There is no evidence before us that the applicant has engaged in any behaviour that has brought him to the attention of the police since late 2008.
[11]
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (section 30(1)(i))
In 2008, Dr Lennings assessed the applicant as having a "moderate risk of re-offence" and a "likely low to moderately low" risk of committing a sexual offence. We also had before us evidence as to the applicant's complex mental health history as well as him having experienced intrusive thoughts that led to him being fearful he may harm his own children.
It is clear to us from the applicant's evidence he believes he is (in his own words), "a changed person by God's grace". It is also clear to us the applicant views the positive impact his faith has had on his life in the last 10 years as evidence that strongly supports his application and that should be accorded significant weight by the Tribunal. He strongly refutes any suggestion he would repeat the behaviour that comprised the 1994 offences or repeat the conduct set out in [32].
We acknowledge the applicant has made significant efforts to incorporate into his life measures that may mitigate against him re-offending such as abstaining from illicit substances and finding support and affirmation in his church community. Furthermore, there is no evidence before us he has engaged in any problematic conduct since 2008. We acknowledge the applicant shows remorse for his past actions. He has also in the past confessed to unlawful behaviour (including the 1994 offences and making a fraudulent Worker's Compensation claim) in circumstances where his wrongdoing may not have otherwise been detected.
The weakness in the applicant's case (especially given he has the onus of rebutting the presumption that he is a risk to children) is that he has not put into evidence any professional evidence as to his current psychological state and the risk, if any, of him repeating conduct of the nature that constituted the 1994 offences or the conduct set out in [32]. Furthermore, the applicant has not put into evidence any recent blood tests nor an analysis of those tests that provide independent reliable confirmation of his sustained abstinence.
The evidence presented by the applicant in support of his application is not sufficient to rebut the assessment of Dr Lennings in 2008 that the applicant is "a moderate risk of re-offence although it is unlikely such an offence would involve a child". We find that if the offences were repeated with a child either as the victim or a witness then there would clearly be a significantly adverse impact on the child.
[12]
Any information given by the applicant in, or in relation to, the application (section 30(1)(j))
The applicant relied upon the character references in Exhibit A3 in support of his application. They attest to his good character, spirituality and concern for others. The positive character references from Pastor D and Pastor H were supported by their oral evidence.
We are able to give the references some weight as to the character and behaviour of the applicant but only to the same extent as any layperson can make that assessment about another. Both witnesses state they do not have any qualifications in psychology. We are also able to give less weight to Pastor H's evidence as it is unclear whether he knew the full nature of the applicant's disqualifying offences.
[13]
Any relevant information in relation to the person that was obtained in accordance with section 36A and any other matters that the Children's Guardian considers necessary (section 30(1)(i1)(j1)(k))
These matters have already been referred to in the above paragraphs.
[14]
Tribunal's findings
The primary issue for the Tribunal to determine is whether the applicant has discharged the onus on him to rebut the presumption that he is a risk to children: that is, he poses a real and appreciable risk that is greater than any adult preying on a child: Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42].
The evidence from the applicant is that he knows he is someone who would not harm a child and that this view is supported by leaders of church communities. His application appears to be strongly motivated by the desire to "be given the opportunity to prove to the public that I'm not a person who would ever put anyone child in danger and I would do everything within my power to protect them".
We accept that the applicant honestly believes he is not a danger to children. However, our starting point under the legislative scheme we are applying is that we are to presume he does pose a risk to children unless the applicant proves that not to be true: section 28(7) of the Act. The operation of the Act is not intended to be punitive with respect to the applicant but the paramount consideration is the 'safety, welfare and well being of children and, in particular, protecting them from child abuse": section 4 of the Act.
The evidence the applicant has presented is not sufficient to satisfy us on the balance of probabilities that he has rebutted the presumption that he poses a risk to children. The applicant has not presented any relevant and current evidence from appropriately qualified medical and health professionals that rebuts the presumption he is a risk to children. The professional opinion of Dr Jennings in 2008 is that the applicant poses "moderate risk of re-offence although it is unlikely such an offence would involve a child" and a "likely low to moderately low" risk of committing a sexual offence. This view stands unchallenged by any updated risk assessment provided by the applicant. We find this level of risk to be unacceptable and it would be contrary to the paramount consideration of the Act to make an enabling order that would permit the applicant to engage in any child related work.
Furthermore, Dr Jennings stated at that time that if the applicant is granted a clearance then he should continue to receive psychological treatment and undergo regular drug screening. The applicant's evidence is that he has not regularly seen a psychologist for 10 years other than for his chronic pain issues and the impact his OCD may have on managing it. The applicant also failed to produce evidence that supports his claim he continues to be abstinent from illicit drugs. In 2009, the ADT could not be satisfied the applicant did not pose a risk to children because of his psychological state and that he had not long been abstinent from illicit drug use (as set out above at [38]). The applicant was on notice as to the benefit this evidence could have in rebutting the presumption he poses a risk to children.
In the absence of such evidence and taking into account all the evidence that is before us and the considerations required under section 30(1) of the Act, we find the applicant has failed to rebut the statutory presumption that he poses a real and appreciable risk to the safety of children.
Section 30(1A) of the Act is not applicable in this matter as the Tribunal has found the applicant poses a real and appreciable risk to children. However, in the event, we have erred in that finding we will proceed to apply section 30(1A) to the evidence before us.
We support and adopt the reasoning of the Tribunal that the "reasonable person" referred to in section 30(1)(A)(a) is a person who "is acquainted with all the relevant facts of which the Tribunal is aware": CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY v Children's Guardian [2017] NSWCATAD 262 at [73]. We are satisfied that the reasonable person with knowledge of all the evidence and submissions placed before the Tribunal would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work. We are also satisfied on the evidence before us that it is not in the public interest to make an order enabling the applicant to work with children.
Accordingly, the appropriate order is to dismiss the applicant's application for an enabling order.
[15]
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: 02 August 2018
The applicant, referred to as DGQ, is a 50 year old man. The applicant seeks an enabling order pursuant to section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) declaring he not be treated as a "disqualified person" so that he can be granted a Working with Children Check clearance (a clearance). The applicant seeks a clearance primarily so he can engage in activities at his local church that require participants to hold a clearance.
The applicant applied to the respondent for a clearance on 4 January 2017. The respondent refused his application on the basis that he is a "disqualified person" under subsection 18(1) of the Act. The applicant is a "disqualified person" by reason of his conviction of two offences under the Crimes Act 1900 (NSW) (Crimes Act) that are deemed disqualifying offences under Schedule 2 of the Act (referred to below as the 1994 offences). The offences are two counts of assault with act of indecency under section 61L of the Crimes Act that occurred on the same day in 1994 when the applicant was heavily intoxicated and touched two women inappropriately in the bar of a hotel. He initially denied his involvement in the offences but three years later confessed to police he had committed the offences. The offences were found to be proven and no conviction recorded.
On 5 December 2017, the applicant applied for an enabling order from the Tribunal pursuant to section 28 of the Act that he not be treated as a "disqualified person". The order, if granted, would enable the applicant to work in any child-related work or child related role.
The applicant was previously refused an order on 23 July 2008 under the Commission for Children and Young People Act 1998 (NSW) that would have permitted him to fulfil his desire to work as a bus driver (as well as engage in any other child related employment) on the basis of the 1994 offences. The applicant sought a review of that decision from the former Administrative Decisions Tribunal (ADT) and it was dismissed: see II v Commission for Children and Young People [2009] NSWADT 178. An order was made by the ADT at the time that the applicant could make a further application for an order any time on or after 20 February 2010 (rather than having to wait the usual period of five years from the date of the ADT order).
There is no dispute the Tribunal has jurisdiction to determine this application. The issue to be determined by the Tribunal is whether the applicant poses a risk to the safety of children. The Tribunal is to presume that, unless the applicant proves to the contrary, he does pose such a risk: section 28(7) of the Act.
The applicant contends he does not pose a risk to the safety of children, should not be treated as a "disqualified person" under the Act and the Tribunal should make an enabling order. The respondent opposes the making of the order sought by the applicant.
For the reasons that follow and after careful consideration of all the evidence, we are not satisfied the applicant has discharged the onus to rebut the statutory presumption that he poses a risk to the safety of children. The applicant's application for an enabling order is dismissed.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcast without the leave of the Tribunal.
The Legislative Scheme
The Act makes provision for the regulation of those persons who can engage in or continue to engage in 'child related work'. The objects of the Act are:
The object of this Act is to protect children:
1. by not permitting certain persons to engage in child-related work; and
2. by requiring persons engaged in child related work to having working with children check clearances.
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.
It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.
'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.
Subsection 8(1) of the Act prohibits a person from engaging in 'child related work' unless (a) the person holds the relevant clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant clearance. Contravention of this provision is an offence carrying a maximum penalty of 100 penalty points or imprisonment for two years or both.
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 clearance or there is no current application by the person for such a clearance.
The applicant requires a clearance because he wants to engage in all aspects of the community and pastoral life of his church. In order to participate in many of these activities, members of the church require a clearance. The applicant also gave evidence that if he was granted a clearance he may wish to coach a rugby league team and drive a bus. If the applicant is granted a clearance then it will not be restricted to engaging only in those activities and it would clear him for any child related work: BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
As referred to above, subsection 18(1) of the Act states that the respondent must refuse an application for a clearance where the applicant is a disqualified person by reason of having been convicted of an offence within the meaning of Schedule 2 of the Act. The term 'conviction' is defined in subsection 5(1) of the Act to include 'a finding that the charge for an offence is proven or that a person is guilty of an offence even though the court does not proceed to a conviction'.
Onus of proof and standard of proof
It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children: section 28(7) of the Act.
The standard of proof applied by the Tribunal is the civil standard, that is, the balance of probabilities. In accordance with the statement of Lemming J in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126] to [127], the Tribunal approaches its fact finding in accordance with the principle in Briginshaw v Briginshaw (1938) 60 CLR 336. This principle is helpfully enunciated in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35] as being "a comfortable level of satisfaction, fairly and properly arrived at commensurate with the gravity of the charge, achieved with fair processes appropriate to and adopted by such a body".
Required considerations
Section 30 of the Act sets out how an application under section 28 is to be determined by the Tribunal:
30 Determination of applications and other matters
(1) The Tribunal must consider the following in determining an application under this Part:
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(i1) any order of a court or tribunal that is in force in relation to the person,
(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 30(1A) of the Act is applicable if the Tribunal has found the applicant does not pose a real and appreciable risk to children: ZZ v Secretary, Department of Justice [2013] VSC 267 (ZZ); CHB v Children's Guardian [2016] NSWCATAD 214 at [107]; CSO v Children's Guardian [2017] NSWCATAD 346 at [126].
When a "disqualified person" makes an application to the Tribunal for an enabling order, the respondent is a party to those proceedings and may make submissions in opposition to, or support of, the making of the order: section 28(4). If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance: section 28(6). The Tribunal cannot make an enabling order subject to conditions: section 28(8).
The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (NSW). 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'…
These observations by Young CJ continued to be cited with approval by the former ADT in interpreting the meaning of 'risk' as it appeared in subsection 33J(1) of repealed Part 7 of the Commission for Children and Young People Act 1998 (NSW): see ADV v Commission for Children and Young People [2012] NSWADT 8. The remarks have also been cited with approval by this Tribunal in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; BFC v The Children's Guardian [2014] NSWCATAD 115 and BJB v NSW Office of the Children's Guardian (No. 2) 2014 NSWCAT 164 at [33].