DJS v Children's Guardian

Solicitors: HWL Ebsworth Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 201800067947 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

1. The applicant who is a medical practitioner seeks a stay of the operation of the decision under review made by the Children's Guardian on 2 February 2018 to refuse to grant a Working with Children Check Clearance. That clearance was applied for by him on 13 February 2017.
2. The applicant is known by the pseudonym "DJS" in these proceedings in order to protect his identity and in accordance with the practice of the NSW Civil and Administrative Tribunal. This step may be reviewed later under section 64(3) of the Civil and Administrative Tribunal Act 2013 (NSW) but for the present it is considered appropriate and desirable to maintain anonymity to protect the applicant and his patients.
3. The application is an administrative review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") concerning the decision of the Children's Guardian, and an application for a stay of the operation of the decision under review, both of which were filed within time and so no issue is taken by the respondent Children's Guardian.
4. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter due to the date of the application to the Tribunal and the date of application: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.
5. It is not asserted by the applicant that he was not properly subject to an assessment requirement: section 14 of the Act. It is not asserted that the Children's Guardian was not permitted to determine that the applicant poses a risk to the safety of children.
6. The applicant is without a Working with Children Clearance now, preventing him from working with children in child-related work: subsections 2(c) and 8(1) of the Act; there are no applicable exemptions under the Child Protection (Working with Children) Regulation 2013 (NSW).
7. The applicant requires a Working with Children Check Clearance in order to work in children's health services. The applicant explains in his material that he treats adults primarily but is required to treat children or adolescents in urgent or acute situations, particularly when he is on call. The applicant estimated that in the last 8 years he has directly consulted fewer than 5 children or adolescents.
8. In 1988 the applicant was convicted for the manslaughter in 1987 of his former wife. The offence was within the context of a domestic relationship. They had divorced the month prior to her death. They had been married 7 years prior to divorce. It is the applicant's submission that it was not a crime committed in the context of a domestically violent relationship despite the fact that the relationship finally ended in the death of the applicant's former wife.
9. The Medical Tribunal has allowed the applicant to continue practising medicine and found that the applicant had not committed a premeditated crime, and the crime was committed at a time when the applicant was suffering from mental impairment due to addiction to alcohol and deleterious drugs which he has now put behind him and overcome. The applicant has apparently not consumed alcohol since 1990.
10. The applicant was initially charged with murder of his former wife. It does not appear to be disputed that the applicant shot his former wife, who was then aged 44 years old, with a gun 4 times to her head and body during a domestic dispute. The gun was a .22 calibre lever action Winchester Magnum rifle. One of the shots fired by the applicant resulted in fatal brain damage and instantly the victim died. The former wife at the time of the shooting was standing in the rear yard of their shared home near a caravan which was being used as temporary accommodation.
11. After the shooting the applicant contacted a doctor friend and informed him that he had committed the offence. That friend contacted the police who attended shortly thereafter and the applicant was taken into custody.
12. Evidence was provided at the murder trial by the applicant's treating psychiatrist as to the applicant's state of mind at the time he shot his wife, and it was this psychiatrist's opinion that the applicant was likely to be suffering from a "complex state of intoxication" related to delirium. The Crown accepted a plea of guilty to manslaughter on the third day of trial either due to lack of appropriate intent, or on the basis of diminished responsibility, or both.
13. The applicant was sentenced in the Supreme Court of New South Wales to 8 years penal servitude with a specified non-parole period of 4 years dating from the date of the death of his former wife. The applicant spent approximately 2.5 years in prison. He was released on parole in March 1990. The Medical Board refused his application for registration in 1993. The Medical Tribunal permitted him to practice subject to conditions determined at its hearing in 1994.
14. This is an application relying upon section 60 of the Administrative Decisions Review Act 1997 (NSW) and the applicant is now seeking a stay of the operation of the decision made by the Children's Guardian.
15. The provisions of section 60 of the Administrative Decisions Review Act are as follows: 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
16. In other words, the application for review does not act as a stay of the decision under review. It is to be observed that the discretionary power is restricted by the operation of section 61 of the Administrative Decisions Review Act and that restriction has been satisfied in this matter, because the "administrator who made the decision" is represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review.
17. The application for stay was heard by the Tribunal on 15 March 2018 in the Community Services List at the end of that list. The applicant does not submit that conditions should be attached to the order granting a stay: see section 62 Administrative Decisions Review Act; Elgammal v Director General, Department of Transport [1999] NSWADT 82.
18. The issue the Tribunal is to ultimately decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. That decision in this matter will not be made until the final hearing of the application. At the time of hearing the stay application directions were made to allow this matter to be set down for final hearing on 31 May 2018.
19. Provided that the matters which must be considered in section 30 of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
20. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.
21. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
22. An order prohibiting publication of identifying information was made on 15 March 2018 under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) as previously recorded in these reasons. That restriction is recorded at the title page of these reasons.

The evidence relied upon in the interim hearing

1. The Tribunal received evidence contained in the following documents: 1. Bundle of Documents filed on behalf the applicant on 7 March 2018: Exhibit 1. 2. Administrative review application form filed 1 March 2018 together with Annexures: Exhibit 2. 3. Application for stay or interim order filed 1 March 2018: Exhibit 3; 4. Applicant's written submissions on the stay application filed 14 March 2018: Exhibit 4; 5. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997: Exhibit 5; 6. Respondent's written submissions on the stay application dated 15 March 2018: Exhibit 6; 7. Chronology: Exhibit 7.

No onus of proof

1. Any finding of fact will be determined upon the civil onus of proof which is the balance of probabilities. Because of the limited nature of the interim application for a stay the Tribunal will not be able to make a concluded finding of fact on contested matters. The Tribunal will consider whether there are any agreed facts and may need to make some prediction as to the likely findings or at least some consideration of the types of issues to be determined at the final hearing.
2. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
3. This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
4. Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
5. The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 ("Bronze Wing") at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted: "[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36]. [72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test. … [74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party."
6. The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 ("Karakatsanis") at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis: "[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law. [37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting 'a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct'. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])] [38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).] 'The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.' [39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present."(footnotes and references included)
7. The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button's decision and orders in Bronze Wing.
8. The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil onus to determining a factual matter: CJT v Office of the Children's Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].
9. The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
10. The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
11. The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.
12. Because the applicant is seeking a stay there are some general principles which apply to that type of application which are set out later in these reasons. It is submitted by the respondent that the applicant bears an onus to satisfy the Tribunal that a stay ought to be granted. That is different to the onus in relation to the administrative review application.

Legislative Provisions

1. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.
2. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
3. There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
4. The objects of the Act are set out in section 3 which provides: "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."
5. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
6. "Conviction" as defined in section 5 (1) of 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 does not proceed to a conviction."
7. Pursuant to section 15 of the Act the Children's Guardian may conduct a risk assessment of the applicant. The section relevantly provides as follows: "15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder...."
8. The applicant was subject to a risk assessment due to his conviction for manslaughter which is an offence comprising fatal violence and the fact that the applicant received a custodial sentence.
9. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
10. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
11. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995) and is to act with as little formality as the circumstances permit, to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
12. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
13. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
14. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
15. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
16. The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often-cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order: "However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
17. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [33]. It is not necessary to set out the reasoning behind the Tribunal's determination in this decision.
18. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
19. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
20. In the following paragraph, the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
21. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.

The Issue

1. The applicant seeks that the operation of the decision of the Children's Guardian to refuse his Working with Children Check Clearance should be delayed until after a further final hearing. The Tribunal has to determine whether it is desirable to do so after taking into account: 1. the interests of any persons who may be affected by the determination of the application, and 2. any submission made by or on behalf of the administrator who made the decision to which the application relates, and 3. the public interest.
2. Additionally, it is accepted that conditions may usually be imposed while granting a stay for a specified period of time, or if no period is specified until the decision of the Tribunal on the application takes effect: section 62 Administrative Decisions Review Act; Elgammal v Director General, Department of Transport [1999] NSWADT 82. That is possible if the relevant regulatory legislative provisions envisage some conditions may be imposed.
3. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302, the Court of Appeal (Basten JA, Campbell JA, and Handley AJA), Basten JA who was in the plurality stated at [21] in relation to section 60 Administrative Decisions Review Act: A stay is commonly granted to preserve the status quo or the subject matter of an appeal (or review), pending a final determination of the appeal. It is granted in the course of an appeal (or review) as a step in the process of determining the subject matter of the appeal (or review). Interlocutory orders of a kind which might not form part of the final determination are regularly made in the course of proceedings, including decisions with respect to the admission or rejection of evidence, the granting of adjournments, and numerous other matters. The material upon which the Commissioner based the decision under review might well be relevant to an interlocutory decision sought under s 60. The purpose of s 29(3) is to maintain the non-disclosure of the existence and content of identified information. To limit the purposes for which the protection was available, so as to exclude some interlocutory steps, would tend to subvert the purpose of the provision.
4. Generally, in civil litigation, a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: Polini v Gray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances whether on conditions or otherwise.
5. It has also been said that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83].
6. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104].
7. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]: "[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said: "In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only." [104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight."
8. As previously referred to, the primary issue before the Tribunal in this application when it comes to the final hearing is what the correct and preferable decision is, having regard to the material before the Tribunal in relation to the granting or refusal of a Working with Children Check Clearance: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
9. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].
10. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.
11. In 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 at [5] the Supreme Court (per White J as he then was) emphasised that it is not Court's task "to conduct a preliminary hearing". In determining whether there is "a serious question to be tried" when considering an interlocutory injunction, it is to be assumed that any conflict in the evidence "would be resolved in the plaintiff's favour." The decision of Deputy President Hennessy in Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [34] applies that traditional formulation to a consideration of a stay pursuant to section 60 of the Administrative Decisions Review Act. The Deputy President also referred at [31] to [33] to the consideration of the prospects of the success or the merits of the review application as follows: [31] The corresponding provision in the Administrative Appeals Tribunal Act 1975 (Cth), section 41, is in similar terms but does not list the public interest as a mandatory consideration. Nevertheless, the prospects of success or the merits of the applicant's case on review have been regarded as relevant: Re XTWK and Australian Securities and Investments Commission (2007) 46 AAR 350 at 354. [32] In AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] the former Administrative Decisions Tribunal held that the phrase "secure the effectiveness of the determination" is another way of saying that there needs to be irreparable loss or harm to the applicant before consideration will be given to making an interim order. The Tribunal went on to say- [15] Section 60 is to be read keeping in mind the common law principles in relation to the exercise of interlocutory injunctions. In Castlemaine Tooheys Limited v South Australia [1986] HCA 58, Acting Chief Justice Mason said at paragraph 11: "The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction". [33] In a practical sense the onus is on the applicant to make out a case that it is appropriate for the Tribunal to make such an order: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9], Wright J, President citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694.

Considerations and the Evidence

1. On an application under section 28 or 29 of the Act the Tribunal may stay the operation of a determination of the Children's Guardian under the Act pending determination of the matter: section 30 (2) of the Act. However, a decision the subject of a section 27 review can only be stayed by reference to section 60 of the Administrative Decisions Review Act. The provisions of section 30 (1) of the Act "must" be applied in "determining an application" under Part 4 of the Act. This stay application is not determining or bringing to an end or concluding the application for review. However, in order to consider whether it is desirable to stay that decision, it is relevant to consider, even if briefly, the matters in section 30(1) of the Act. This is not a preliminary hearing. Such a course is consistent with the prior extract from AVS Group of Companies Pty Ltd v Commissioner of Police.
2. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which is the application for review under section 27. The Children's Guardian in determining the risk assessment "may consider" matters set out in sub sections 15 (4) and 15 (4A) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) and 30(1A) of the Act. The Children's Guardian has already performed an assessment pursuant to section 15 of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.
3. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
4. Section 15 of the Act relevantly provides as follows: "…(4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given 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. (4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that: (a) a reasonable person would 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, and (b) it is in the public interest to make the determination.
5. Section 30 of the Act 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 or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (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. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
6. Each of the following subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under the subheadings reciting the required considerations under the Act.
7. Also, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.
8. The considerations which are required to be taken into account are those set out in section 60 (3) of the Administrative Decisions Review Act. Accordingly, it is the Tribunal's determination that the Tribunal is required to consider those matters set out in section 30 (1) of the Act in order to assess whether it is desirable to make an order under section 60 of the Administrative Decisions Review Act.
9. The Tribunal is cautious in its consideration of the evidence and will not reach a concluded view until after hearing further evidence, including cross examination and submissions in the final hearing, unless facts are admitted or clearly not in contest.

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

1. The applicant is not a disqualified person.
2. It can be observed that if he was convicted of murder, which he was initially facing and upon which charge the trial initially proceeded, the applicant would be a disqualified person. The applicant has served his sentence for the conviction for manslaughter.
3. The purpose of the risk assessment is protective of children and not punitive of the applicant, as earlier stated. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The legislature has included this factor as a matter relevant to the assessment of risk.
4. The offence is a very serious offence. The applicant submits that each sub particular in section 30 (1) of the Act argues in favour of the applicant being granted a clearance including subsections 30(1)(a) and 30(1)(h) which are clearly interrelated and refer to the seriousness of the behaviour. The applicant submits that there is insufficient evidence to make a finding that there is a real risk or an appreciable risk and there is no link in the evidence between risk and safety to children: Exhibit 4 [27].
5. The Children's Guardian considered that the offence was so serious and in such violent circumstances that the passage of time since the offending cannot outweigh the seriousness of the offence.
6. The conviction on this charge of manslaughter and the particular circumstances surrounding that offence are matters of very elevated seriousness.

The period of time since those matters occurred and the conduct of the person since they occurred

1. The offence occurred in 1987 which is approximately 30 years ago.
2. Since his conviction and release from prison the applicant has had a lengthy crime free period. The applicant has provided good character references. There have been 2 complaints made against the applicant to the Health Care Complaints Commission (HCCC). Both complaints were dismissed.
3. The applicant has embarked on a medical career. None of his referees hold any concerns relating to his conduct with, or potential risk to children.
4. The applicant has repartnered and his current partner has been his partner for 5 years. The partner provides information that the applicant has been able to maintain positive personal relationships.
5. The Children's Guardian was satisfied that there were no concerns with the applicant's conduct since his release from prison. There has been a positive history of employment as a medical practitioner. The applicant has in his professional life come into contact with children with no reported adverse consequences.

The age of the person at the time the offences or matters occurred

1. The applicant was aged 39 years at the time of the manslaughter of his former wife.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

1. The victim was aged 44 years.
2. The victim was a vulnerable person because she had an expectation that she would be physically safe in her own home. The use of a firearm by the applicant on an unarmed person means that she was particularly at a disadvantage and could not protect herself from fatal force.

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

1. The difference in age between the applicant and the victim was 5 years. The applicant was younger than the victim.

Whether the person knew, or could reasonably have known, that the victim was a child

1. The applicant knew that the victim was not a child.

The person's present age

1. The applicant is currently aged 69 years of age.

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

1. The applicant does not have an extensive criminal history.
2. The applicant has a prior conviction for drive with prescribed concentration of alcohol in 1975.
3. The Children's Guardian formed the view that the applicant's was a serious criminal history due to the very violent crime.

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

1. The Tribunal has to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant independent of any expert opinion.
2. On the current state of evidence, it is not possible to identify whether there is either a risk or an absence of risk of repetition of such a violent crime. The Children's Guardian considered that there was a likelihood that any risk of recidivism would be at the lower end of the spectrum. This is not an expert opinion.
3. Whilst there may be a low risk of a repetition of this offence the consequences of a repetition of the offence would be fatal. The victim of the manslaughter offence was the mother of a 17-year-old child. There is an absence of evidence about the effect of the death of the child's mother upon the child's psychological and emotional state. It is reasonable to assume that there was a deleterious effect.
4. The applicant was also the father of 2 children at the time of this offence. Both of those children by his first marriage were teenagers.
5. The Children's Guardian considered that the serious consequences of a repetition of the offence was a factor weighing in favour of a finding that the applicant poses a risk to the safety of children.
6. The applicant's submission on the stay application is that there is a lack of evidentiary connection to make a finding that there is a real risk or an appreciable risk of harm to children. If the offence was repeated in the presence of children or had an effect upon children (as victims or survivors) then there is likely to be a significant impact on those children.
7. A prediction that the applicant would have behaved in the way he did is unlikely to have been made prior to the manslaughter of his wife. Otherwise, steps may have been taken to mitigate against that circumstance. Prediction of the likelihood of such offences is fraught with difficulty, not the least because such offences are statistically relatively rare.

Any information given by the applicant in, or in relation to, the application

1. The applicant has provided preliminary information and will provide further information in relation to the application for review of the decision. Directions have been made to prepare the matter for final determination.

Any other matters that the Children's Guardian considers necessary

1. The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary having regard to the fact that this is an interim application.
2. The respondent's prior decision was that a real and appreciable risk to the safety of children is present. That is why the applicant's clearance was refused.

The interests of any persons who may be affected by the determination of the application

1. The grant of a clearance or the stay of its refusal is important to the applicant and the applicant states in submissions that it is also important and impacts on his work colleagues, the local health District, and his patients.
2. The applicant has taken annual leave which will expire mid-April 2018. Thereafter he will need to access his long service leave in order to remain employed with his current position beyond that time and the utilisation of any sick leave that he has available to him.
3. The applicant is a long-standing member of a specialist team and it is submitted on his behalf that his absence has created stress, increased workloads and disruptions for his colleagues. In addition, the functioning of the specialist health service has been disrupted.
4. The applicant states that some of his patients have been unsettled and upset about his sudden absence from the specialist unit. There is a lack of continuity in their care and his therapeutic relationship with them is important to the patients. The applicant submits there are 3 patients in particular who have experienced clinically detrimental consequences as a result of the applicant's sudden absence from his specialist unit.
5. To some extent, those submissions are corroborated by the clinical director.
6. It is accepted that there is both a financial and a non-financial impact upon the interests of the applicant if a stay is not granted.
7. One of the applicant's patients previously performed a Google search and ascertained that the applicant had been convicted of manslaughter which fact the patient then discussed with the applicant. The adult patient then made a complaint about the applicant. The complaint was dismissed. The Children's Guardian submits that a Google search is a circumstance which may be repeated, with consequences for the applicant's patients' sense of security, and whether rightly or wrongly, their feelings of trust and confidence in the applicant's ability to provide assistance to them may be undermined. The HCCC determined that the complaint revealed "no evidence of any risk to the public health and safety and determined to take no further action." Exhibit 5 page 9.

Any submission made by or on behalf of the administrator who made the decision to which the application relates

1. The Children's Guardian made submissions opposing the stay order sought.
2. The Children's Guardian identified that there is a real question raised in relation to the safety of children with the applicant. It is also submitted that the applicant bears the onus of satisfying the Tribunal that the operation of the orders should be stayed. Those submissions may be accepted.
3. The Children's Guardian also submits that the sentencing remarks of the sentencing judge are brief and there are still questions concerning the troubling issues raised by the behaviour of the applicant.
4. The Children's Guardian also submits that there are contentious issues of fact that cannot be resolved on the basis of the material presently available. For example, the HCCC and the Medical Tribunal determinations had the benefit of primary material which will need to be considered by this Tribunal at the final hearing of this matter. It is true to say that there are some agreed factual matters but they do not really go to the assessment of risk.
5. The Children's Guardian agrees that the application for a Working with Children Check Clearance was made in February 2017 and the determination was made by the Children's Guardian on 2 February 2018. The applicant was able to practice his profession during that period of time. The Children's Guardian decided on 13 April 2017 that an Interim Bar under the Act would not be issued and the applicant was so informed to his great relief. Exhibit 5 page 87.
6. The applicant highlights that the preliminary outcome of the risk assessment by the Children's Guardian was for a recommendation to issue a clearance on the basis that the offence took place 30 years ago and since then the applicant has spent the passage of time addressing his offending behaviour and the underlying factors to the offence. The information available to the Children's Guardian at that time demonstrated successful change and therefore he was not considered to be a risk to the safety of children: Exhibit 5 pages 3, 85.

The public interest

1. When assessing the public interest it is relevant to have regard to the nature and seriousness of the offence. This was a serious and violent offence. The interests of the public and children generally may be prejudiced if the applicant is permitted to work with children and it is ultimately found that he does pose a risk to the safety of children.
2. The Act is designed to protect the public and therefore the public interest is entitled to significant weight. It is in the public interest for persons who are considered to be a risk to the safety of children to be prevented from working with children. However, the public interest takes into account other matters. A significant factor in this matter is that the public interest is already been considered in the context of the Medical Tribunal hearing. In the determination of that Tribunal reference was made to a letter from the brother of the deceased person. The Tribunal considered that the public interest refers to "the interest of a public which is fully informed of all the facts; not a public which is informed as to part of the facts or misinformed as to the facts." The Tribunal accepted the remarks made by the sentencing judge. It was said that it is in the public interest that the public have confidence in members of the medical profession. Thus, registration of a person convicted of manslaughter could diminish public confidence. The offence was not a premeditated crime and did not indicate a tendency to vice or violence or any lack of probity. The Tribunal in that matter also held that the crime did not have "connection with nor significance for any professional function". Exhibit 5 pages 36, 40. It was therefore held by that Tribunal that it was in the public interest to allow the applicant registration.
3. The public interest has been considered by the Tribunal in a different context, in relation to the amended version of section 30 of the Act, but that consideration is of interest in the context of the public interest referred to in section 60(3)(c) of the Administrative Decisions Review Act and for the purpose of the stay application. In CLD v Children's Guardian [2017] NSWCATAD 134 the Tribunal referred to and adopted the discussion of the public interest in the decision of the Victorian Court of Appeal in Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 at [24]-[37] where that court referred to the following matters: [24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[[2009] HCA 51] 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.[Citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); see also Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, [31]-[32] (French CJ), [69] (Gummow, Heydon, Crennan, Kiefel and Bell JJ); Osland v Secretary Department of Justice No 2 [2010] HCA 24; (2010) 241 CLR 320, [13].] [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'.[ Act, s 1(1).] 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'.[ Ibid.] [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. [27] Whilst it might be possible to demonstrate that the Tribunal erred in law if it took into account an extraneous factor, it will necessarily be difficult to demonstrate in this context that it misdirected itself in respect of the public interest by failing to have regard to factors which are not imperatively relevant to the achievement of the purpose of the Act. [28] In particular, where the Tribunal, as in the present case, finds that it is positively satisfied that the giving of an assessment notice is in the public interest, it will be difficult to disturb that conclusion because: (a) a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest; (b) the public interest includes matters of such potential breadth that it requires a situational definition by the decision maker having regard to the circumstances of the case; (c) the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification; (d) Parliament vested in the Tribunal - not the Secretary nor the Minister nor this Court - the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case. [29] In our view, for reasons we shall come to, a fair reading of the Tribunal's reasons shows that in neither case did the Tribunal improperly restrict in any way the range of matters potentially relevant to determining what was in the public interest. [30] Thus, it is not sufficient for the Secretary to hypothesise a factor which might be potentially relevant to the Tribunal's decision and then show that the Tribunal did not consider it. The Secretary must demonstrate that the Tribunal was bound to have regard to the factor identified by her and that it failed to do so.[ Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-42, 55; Foster v Minister for Customs [2000] HCA 38; (2000) 200 CLR 442, 452 [22]-[23].] [31] In the present cases, it cannot be said that the factor of 'public confidence in the assessment of persons as suitable for child-related work' [Outline of submissions on behalf of the Secretary in the case of LMB, [13]] necessarily required consideration once it was concluded that the applicants did not objectively pose an unjustifiable risk to the safety of children. [32] First, the perception, as distinct from the fact, of risk is not a factor specifically identified as relevant by the Act, nor can it be said to be imperatively relevant to the achievement of the purpose of the Act. [33] Secondly, the fact that the Act gives the Tribunal a discretion with respect to the giving of notices of assessment to offenders of the class in question counts strongly against the conclusion that mere categorisation by reference to the offence in issue (or any other negative matter able to be taken into account under s 26(2)) is a proper basis for concluding that the public interest requires refusal. [34] Thirdly, it is implicit in the Secretary's submission that the Tribunal may conclude that it would be objectively just to give a notice having regard to the circumstances of an applicant, but not in the public interest to do so because of the probable popular perception of an objectively just decision. It would, in our view, ordinarily require a clear mandate for the Tribunal to regard itself as bound to proceed on the basis of its view of probable public perceptions rather than its view of the objective justice of the situation. We will expand on this matter in a moment. [35] Fourthly, there was no evidence before the Tribunal in either of the present cases of public perceptions of the working with children check system nor any evidence of the likely impact of the giving of the notices in question upon public perceptions. The factor put forward by the Secretary is essentially one of no more than a speculative risk of adverse public perceptions. [36] Fifthly, insofar as it was hypothesised that the Tribunal should have regard to likely public perceptions of the exercise of its discretion without any public knowledge of the facts of the case or the reasons of the Tribunal, we do not see how such a consideration could rationally be given weight.[ Cf Director of Public Transport v XJF [2011] VSCA 302, [58]-[59] (Maxwell P with whom Mandie and Harper JJA agreed).] Such an approach would require the Tribunal to effectively disregard its own view of the merits of the case upon the evidence for fear of uninformed public sentiment. [37] Sixthly, in any event, why should the Tribunal be required to assume that the ultimate public reaction to a carefully reasoned, just and objectively sound decision to grant an assessment notice would or might be a negative or critical reaction? On the contrary, it might well be considered that, at least in the long term, public confidence in the system is better served by rational decision making based on objective evidence rather than by avoiding such decision-making out of fear that the public will think ill of it. This is the view which underpins the rule of law generally in our society and we can see no basis for concluding that such an approach would not be open to the Tribunal. Why should the Tribunal effectively ignore the point made by the Attorney in the second reading speech that, because a negative notice will place significant restrictions on a person's employment and community involvement, a 'full range of appeal rights' is provided in order to 'ensure' that no-one is unfairly treated.
4. This decision was referred to in ZZ v Secretary, Department of Justice [2013] VSC 267 where it was also observed by Bell J at [202]: [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.[See eg BGD v Secretary, Department of Justice [2010] VCAT 50 (8 January 2010) [62] (Judge Harbison, Vice-President) ('BGD'); FC v Director of Public Transport [2010] VCAT 437 (6 April 2010) [27] (Macnamara DP) (under the Transport (Compliance and Miscellaneous) Amendment Act) ('FC'); WSO v Secretary, Department of Justice [2010] VCAT 1522 (16 July 2010) [55] (Judge Hampel, Vice-President) ('WSO).] So, in MH,[[2008] VCAT 1514 (22 July 2008)] 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.[Ibid [35]]
5. The public interest in this matter is better served by permitting the applicant to continue in his work, while consideration is given at the final hearing of this review application, to whether he does indeed pose a real and appreciable risk to the safety of children. These observations and findings are not however binding on the Tribunal's later consideration of the review application.

Consideration

1. The Act is designed to be protective and the Minister's second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk. It is clear that the seriousness of the offence is a significant factor.
2. While there is no presumption that the applicant poses a risk to the safety of children, there has been a determination by the Children's Guardian pursuant to section 15 of the Act risk assessment that the applicant does pose a risk to the safety of children. The Tribunal is to later determine whether that is the correct and preferable decision.
3. The factors which have to be taken into account pursuant to section 30 (1) of the Act have been identified earlier in these reasons. It can be seen from those considerations that further evidence will be required to determine whether or not the correct and preferable decision has been made.
4. The assessment of the Tribunal based upon the previously identified sources of evidence is that it is desirable to grant a stay in order to secure the effectiveness of the determination of the application taking into account the interests of the applicant and the public interest.
5. The Tribunal will be required to make an assessment based on further and more complete evidence at a later point in time which is not far away.
6. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
7. There is a serious question to be tried and the applicant has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the hearing of the review the applicant will be held entitled to the relief he seeks. Additionally, there is persuasive evidence that he will suffer injury unless a stay is granted. That injury will not be able to be remedied. Thirdly, it is established by the evidence before the Tribunal on this application that the balance of convenience favours the granting of a stay. The regulatory body which oversights the applicant's employment as a medical practitioner has determined in the public interest that he may continue to practice medicine. The Children's Guardian initially formulated a position which would favour the grant of a clearance. The work practices of the applicant which are identified in the evidence before the Tribunal on this application would indicate that there is minimal risk of the applicant having unsupervised access with patients who may be children.
8. The applicant's submission is that the finding that carries the lower risk of injustice is to grant a stay.
9. The overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances. Given the limited evidence before the Tribunal at this point in time it is assessed to be in the public interest and in the interests of justice in these circumstances to grant a stay of the operation of the decision of the Children's Guardian.

Conclusion

1. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act. The applicant is also not presumed to be safe with children and it is a matter of evidence to determine whether that is the case.
2. If the applicant is granted a clearance or a stay of the decision of the Children's Guardian he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. It is clear from the second reading speech that a person is either granted a clearance to work with children or is not. There is no mechanism for the Tribunal to monitor any conditions which might be imposed. Any conditions are not able to be enforced or monitored by the Children's Guardian.
3. The decision from which the applicant seeks a review determined that the applicant poses a risk to the safety of children. The purpose of the Act is protective and not punitive. The time during which the Children's Guardian assessed the applicant permitted him to perform his functions as a medical practitioner. A stay of the decision will have a similar effect.
4. These matters may be the subject of further evidence and the ultimate decision of the Tribunal may be contrary to those currently expressed interim opinions. However, on an interim basis where the factors to be considered are not fully expanded upon it is not possible to predict the eventual outcome as likely to favour the applicant. That remains, however, a distinct possibility.
5. Having regard to all the previously identified matters it is the determination of the Tribunal that a stay of the operation of the decision should be granted.

Order

1. The order of the Tribunal is that: 1. The application for a stay of the operation of the decision under review is granted.

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 March 2018