DPO v Children's Guardian

Relevant law

1. 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 Child Protection (Working with Children) Act 2012 (s 4).
2. The Children's Guardian is not permitted to grant a working with children check clearance to a person convicted of an offence specified in Schedule 2, including manslaughter of a child, if the offence was committed as an adult (Child Protection (Working with Children) Act, s 18(1)(a); Sch 2, cl 1(1)(b)). Such a person is a "disqualified person."
3. After having been informed by the Children's Guardian that he was a disqualified person and that the Children's Guardian could not grant him a clearance, the applicant applied to the Tribunal for an enabling order under s 28(1) of the Child Protection (Working with Children) Act.
4. There is a statutory presumption that a disqualified person poses a risk to the safety of children, unless the person proves otherwise: Child Protection (Working with Children) Act, s 28(7).
5. The applicant applied, under s 30(2) of the Child Protection (Working with Children) Act, for the Tribunal to stay the operation of the determination by the Children's Guardian pending the determination of the matter.
6. Section 30(2) is curious, in that it refers to the stay of a "determination by the Children's Guardian" in circumstances where a person becomes a disqualified person by operation of law, not by reason of a decision of the Children's Guardian. The reference to a determination is presumably a reference to the Children's Guardian's non-discretionary decision to refuse the clearance under s 18(1) of the Child Protection (Working with Children) Act and her notification to the applicant of this determination under s 20(1) of that Act.
7. When considering an application under Part 4 of the Child Protection (Working with Children) Act (which includes an application for a stay), the Tribunal is required to have regard to the factors set out in s 30(1) of the Child Protection (Working with Children) Act. The Tribunal may not make an order under Part 4 which has the effect of enabling a person to work with children in accordance with this Act unless the Tribunal is satisfied of certain matters set out in s 30(1A).
8. The principles the Tribunal must apply when considering an application for a stay under s 30(2) were discussed by Senior Member Anderson in CZI v Children's Guardian [2017] NSWCATAD 179. These include that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances (CZI v Children's Guardian [2017] NSWCATAD 179 at [35], citing New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]).

Consideration

1. The most critical issue when deciding whether to grant a stay is whether the applicant has displaced the presumption that he is a risk to the safety of children. If he has not, having regard to the paramount consideration being the safety, welfare and wellbeing of children, the Tribunal would not grant the stay.
2. The matters which I am required to consider under s 30(1) of the Child Protection (Working with Children) Act, which are relevant to the evaluation of such risk, are dealt with below.

The seriousness of the offences with respect to which the person is a disqualified person

1. The offence of manslaughter of a child is an objectively serious offence. The circumstances of the offence, being that the applicant was not directly responsible for killing the child, and claims to have acted in self-defence, mitigate the seriousness of the offence to some degree.

The period of time since those offences or matters occurred and the conduct of the applicant since they occurred

1. The offences occurred over 30 years ago. The conduct of the applicant, on the limited material before the Tribunal, has been commendable since that time. His evidence is that he has been awarded a medal for service to the country, has held senior roles in industry and government, has raised one child and is raising another. His lifestyle has been, as the respondent acknowledged, a pro-social one, on the evidence available. However, as the respondent pointed out, the applicant's evidence is not corroborated.

The age of the applicant at the time the offences or matters occurred and the applicant's present age

1. The applicant was about twenty-two when the offence occurred. The circumstances that he was young, and that there is no evidence that he has engaged in violent activity since that time and that he is now in his fifties are factors supporting his submission that he is not a risk to the safety of children.

The age of the victim and any matters relating to the vulnerability of the victim

1. The victim was a teenage girl. I have not referred to her precise age so as to preserve her anonymity. She was vulnerable as she was an innocent bystander.

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

1. There was no relationship between the applicant and the child victim. He was several years older than her.

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

1. The applicant did not know that the girl who was killed was present when the offence took place, as she was standing behind him. He could not reasonably have known that she was a child.

The seriousness of the applicant's criminal history and the conduct of the person since the matters occurred

1. The applicant was convicted, at the same time as he was convicted of manslaughter of a child, of manslaughter of six other people. The circumstances were identical.
2. He was convicted of refuse breath test and drive unlicensed vehicle in 2000, but has no other criminal convictions.
3. His conduct since that time is described above.

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 very unlikely that the applicant would repeat the offence. There is no evidence that he is now associated with the same group or that he is involved in any illegal activity. He has led a pro-social life for about 30 years. If he did repeat the offence, the impact upon a child would be devastating.

Other matters

1. There is no order of a court or tribunal that is in force in relation to the applicant, and no relevant information in relation to him that was obtained in accordance with s 36A of the Child Protection (Working with Children) Act.

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

1. The applicant made a number of statements and submissions in relation to the application. These included that: 1. A judge, when granting him bail, had described him as being of good character; 2. At the time of the violence between the groups, he assisted to remove the wounded from the scene; 3. At the time of the offence, he was employed by a government employer. That employer supported him and re-employed him as soon as he was released from gaol; 4. He has obtained several degrees, has had a successful career and has worked in positions of responsibility since that time.

Any other matters that the Children's Guardian considers necessary

1. Ms Dart, for the Children's Guardian, submitted that there was insufficient evidence for the Tribunal to be satisfied that the applicant does not pose a risk to the safety of children.
2. Ms Dart submitted that there were some inconsistencies between the applicant's own account of the circumstances of the offence and those appearing in other evidence. For example, he had referred to himself as moving the wounded, but had omitted to mention that he had fired two shots. Further, he had told the Tribunal he had no further charges or convictions but, in fact, he had convictions for refuse breath test and drive unlicensed vehicle and a charge of common assault was dismissed in 1992.
3. Ms Dart pointed out that the applicant's evidence as to his employer's support of him and the judge's remarks about him was uncorroborated, and therefore needed to be treated with caution.
4. Ms Dart also submitted that there were a number of matters which mitigated against the grant of a stay, including that there was no apparent urgency which would justify granting one. The applicant provided no evidence to explain why he would not be able to be involved in activities with his son, as a parent, or why he needed the clearance in relation to his prospective employment.

Conclusion as to risk

1. As indicated earlier, the applicant bears the burden of persuading the Tribunal that he is not a risk to the safety of children (Child Protection (Working with Children) Act, s 28(7)).
2. The applicant's accounts of the circumstances of the offence and the pro-social lifestyle he has led since the offence, if accepted, would indicate that he is unlikely to pose a risk to the safety of children. This evidence is, however, uncorroborated, as the Children's Guardian has pointed out. Further, there are some discrepancies between the applicant's accounts and the limited documentary evidence available, as described above.
3. The offence of which the applicant was convicted was very serious. The applicant needs to provide sufficient evidence to establish that, notwithstanding that he has committed such an offence, he does not pose a risk to the safety of children. In the absence of any documentary evidence or evidence from a third party which would support this conclusion, I am not satisfied that the applicant has proved that he does not pose a risk to the safety of children. As a result, it is not necessary to consider the matters in s 30(1A) of the Child Protection (Working with Children) Act.
4. Even if I were persuaded that the applicant did not pose a risk to the safety of children, I would have some hesitation in granting the stay on the current evidence. The applicant may coach his son's sporting team or volunteer at his school, without a clearance (Child Protection (Working with Children) Regulation 2013, cl 20(1)(e) and (f)). The applicant has not pointed to any particular position for which he wants to apply which requires a working with children check clearance, and his previous work does not appear to be child-related.
5. Accordingly, the applicant has not established that the interests of justice require the grant of a stay in the circumstances of his case (New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]).

Orders 1. The applicant's application for a stay of the determination of the Children's Guardian is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2018