DMM v Children's Guardian

The Legislative Scheme

1. The Act makes provision for the regulation of those persons who can engage in or continue to engage in 'child related work'. The objects of the Act are 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 have working with children check clearances.
2. 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.
3. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.
4. 'Children' is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word 'child' has the same meaning.
5. Subsection 8(1) of the Act prohibits a person from engaging in 'child related work' unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance.
6. Subsection 9(1) of the Act contains a similar prohibition on an employer employing or continuing to employ a person in child-related work who does not hold or have a current application for a relevant Working With Children Check clearance.
7. Child-related work is broadly defined in sections 6 and 7of the Act. It includes paid and unpaid work in child-related work.
8. Applications for a working with children check clearance are made to the respondent under section 13 of the Act. Section 18 sets out the powers of the respondent in regard to determining any application that is made. As we have noted the respondent refused the applicant's application, as she was required to do, under subsection 18(1) of the Act because he is a disqualified person having been convicted of a Schedule 2 disqualifying offence.
9. Subsection 28(1) of the Act gives the Tribunal a discretion, on the application of a disqualified person, to make an enabling order declaring the person not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence.
10. Subsection 28(7) provides that where an application for an enabling order is sought: "…it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children". In this application, therefore, the onus is on the applicant to rebut this statutory presumption that he poses a risk to the safety of children.
11. The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said: One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…
12. The Tribunal has adopted a similar meaning to the word "risk" as it appears in the current Act.
13. Subsection 28(8) provides that an enabling order cannot be made subject to conditions. That is, if an enabling order is made and a Working With Children Check clearance is granted this clears the person to work in all forms of child-related work for five years unless suspended or cancelled by the respondent prior thereto.

The evidence relied upon

1. The applicant relied upon the following documentary material: 1. Application for review filed 25 June 2018 attaching the Notice of Cancellation; 2. An affidavit of the applicant affirmed 21 August 2018 together with six documents attesting to his positive character lodged on 24 August 2018; and 3. Outline of Submissions on behalf of the Applicant lodged on 25 October 2018.
2. The respondent relied upon the following documentary material: 1. Respondent's Tender Bundle filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 on 11 July 2018 comprising 29 pages; 2. Further Documents filed by the respondent on 29 August 2018 comprising 10 pages; and 3. Respondent's Outline of Submissions filed 5 October 2018.

The evidence presented

1. The Tribunal "must consider" those factors set out in section 30(1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.
2. The Tribunal must also satisfy itself in relation to the tests set out in section 30(1A) of the Act.
3. The evidence is set out below under subheadings that refer to the section 30(1) factors and section (1A) tests set out in the Act.

(a) The seriousness of the offences

1. In 1973 the applicant pleaded guilty to, and was convicted of, the offence of 'carnally knowing girl under age of 16 years' contrary to section 71 of the Crimes Act 1900 (now repealed).
2. The applicant was 18 years old at the time of the offence and the victim was 15 years old. The applicant and the victim gave somewhat different accounts of the offence to police in reports at the time. The victim alleged that she was told by the applicant that he would not take her back to the town if she did not have sexual intercourse with him as a result of which she agreed. The applicant stated that he decided to have sexual intercourse with the victim because she was known to have engaged in such activity with others.
3. The disqualifying offence is clearly serious and at the time carried a maximum penalty of 10 years' imprisonment. The respondent notes, however, that the seriousness is mitigated by the applicant's early plea of guilty and his immaturity at the time of the offending conduct.

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

1. The offence took place approximately 46 years ago.
2. Since that time the applicant has been convicted of two other offences, both offences against property in 1972, the same year as the disqualifying offence. There is no record of any other criminal offences.

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

1. The applicant was 18 years of age at the time of the offence.

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

1. The victim was 15 years at the time of the disqualifying offence. Apart from the victim's age, there is no evidence of her being vulnerable for any other reason.

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

1. The applicant was approximately 3 years older than the victim.
2. There was no relationship between the victim and the person who had only known each other for a few weeks.

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

1. The applicant admitted to knowing the age of the victim when interviewed by police on 6 July 1972.

(g) The person's present age

1. The applicant is now 64 years of age.

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

1. In addition to the disqualifying offence, the applicant's criminal record contains two property offences which took place in 1972. There is no record of any other allegations of any type against the applicant since that time.

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

1. It is stated in the Respondent's Outline of Submissions at paragraph 57 that: The disqualifying offence occurred 46 years ago and the offending behaviour has not been repeated. It is conceded that the likelihood of repetition of the offence by the Applicant is low due to the passage of time since the offending conduct.
2. If the offence was repeated it would have a significant impact on the child in question but the respondent accepts that such repetition is low.

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

1. The applicant has been married for 42 years and has two children. He recently retired after working for a government department for 33 years. He has provided evidence of his contribution to the community as an active volunteer over many years.
2. Although he states that he can no longer recall the details of the offence as a result of the passage of time, the applicant accepts his guilt and demonstrates remorse for his actions.

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

1. The Children's Guardian does not put forward any additional matters for consideration.

Section 30(1A) tests

1. The Children's Guardian submitted that the Tribunal can be satisfied of the factors set out in section 30(1A) of the Act which are that the reasonable person would allow his or her children to have direct contact with the applicant that is not directly supervised and that it is in the public interest for the Tribunal to grant an enabling order.

Consideration

1. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment should err on the side of caution while 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.
2. Although the offence of 'carnal knowledge' is of itself serious, the behaviour that took place and triggered these proceedings is at the lower end of seriousness in relation to disqualifying offences and a very long period of time has passed since the offence was committed.
3. We accept that the applicant is genuinely remorseful and was immature at the time he committed the offence. We are satisfied that the likelihood of him repeating the disqualifying offence is very low based on his current relationship status, his pro-social life since committing the offence and his maturation.
4. Subsection 28(5) of the Act provides that the applicant is required to fully disclose to the Tribunal any matters relevant to his application and we find that the applicant has been open and frank and willingly disclosed all relevant matters.
5. We note that the applicant has never been the subject of any complaint in the workplace, including in paid and voluntary roles. This also weighs in his favour.
6. We are satisfied that the reasonable person would allow his or her children to have direct contact with the applicant that is not directly supervised.
7. We are also satisfied that it is in the public interest for the Tribunal to grant an enabling order so that the applicant is able to participate in paid or voluntary employment activities involving children.
8. We are satisfied that the evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the applicant.
9. Having regard to the abovementioned factors and the material before us, in our view, the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children and it is appropriate to make the orders sought.

Order

1. The order of the Tribunal is that: 1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW). 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) the Children's Guardian is to grant the applicant a Working with Children Check Clearance.

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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: 13 December 2018