On 12 October 2018 the applicant applied for a WWCC clearance.
On 19 October 2018 the applicant was refused a WWCC clearance as he was a disqualified person because he had been found guilty of the disqualifying offence.
[2]
Procedural history
On 8 November 2018, the applicant filed application 18/343144 against the respondent.
On 7 December 2018 and 18 March 2019, the Tribunal made orders for the hearing of the proceedings.
[3]
The hearing
At the hearing the applicant relied on the following written evidence:
1. two affidavits of the applicant affirmed on 22 February 2019 and 2 April 2019;
2. the report of Dr Olav Nielssen, a forensic psychiatrist, dated 24 February 2019;
3. the affidavit of James Feng, the applicant's solicitor, sworn on 4 April 2019;
4. three character references, from the applicant's girlfriend, friend, and school friend, respectively.
The applicant and Dr Nielssen gave oral evidence.
The respondent relied on the following written evidence:
1. the documents filed on 20 December 2018 (pp 1-33);
2. the documents filed on 15 March 2019 (pp 1-49);
3. the documents filed on 22 March 2019 (pp 1-11);
4. the documents filed on 27 March 2019 (pp 1-72).
[4]
The affidavits of the applicant
In his two affidavits the applicant dealt with the matters set out below.
[5]
The need for a WWCC clearance
The applicant, who is now aged 24 years, is in his first year of a Doctor of Medicine program at the University of Queensland. The applicant wishes to do placements in hospitals in New South Wales (as part of the Doctor of Medicine program) and is considering transferring his studies to a university in Sydney. He requires a WWCC clearance to do so.
[6]
The applicant's family situation
The applicant was born in China and is an only child. His parents separated when he was 3 years old. He had a close relationship with his grandfather, whom he loved and adored. He has no relationship with his father.
The applicant's mother moved to Australia when he was 7 years old. He followed her to Australia when he was 11 years old. The applicant lived with his mother in Sydney from that time, until he moved to Brisbane to begin the Doctor of Medicine program at the University of Queensland, at the beginning of this year.
[7]
The applicant's HSC year in 2012
A Contact Record of Family and Community Services (FACS) on 30 August 2012 records that a notifier raised concerns about the applicant's mental health and about suicidal ideation concerns (FACS Contact Record). No further action was taken by FACS as it did not meet the Risk of Significant Harm threshold. In his first affidavit the applicant recalled that at the time he was feeling stressed and under pressure from the amount of work and study due to upcoming Higher School Certificate exams. In his second affidavit the applicant wondered whether the report to FACS was about a friend rather than himself because he does not remember feeling suicidal and telling anyone he felt suicidal at the time.
[8]
The incident at Castle Hill in 2013
A Report of NSW Police Force dated 15 May 2013 records that the applicant attended the home of the victim at Castle Hill with his mother and punched the victim (NSW Police Report). No action was taken by police as the victim was unwilling to provide a statement. In his first affidavit the applicant said he put up his hand to block punches of the victim.
[9]
The health of the applicant's mother
Since around 2013, the applicant's mother has had a number of ongoing health issues. The applicant has been her primary source of care and support in dealing with these issues.
[10]
The death of the applicant's grandfather in 2014
In October 2014, the applicant's grandfather died suddenly. The applicant was devastated. He started to fall behind in his studies and avoided social activities. This is when he started to feel depressed and unable to deal with the situation.
[11]
The circumstances leading to the disqualifying offence
After his grandfather's death, the applicant's grades at university started to fall and he started to feel like he was not good enough for anything. He withdrew from his friends and family.
His grades eventually lifted but he continued to feel down and depressed with his life. He started to turn to thrill seeking activities, which he believed were harmless. For example, if there was pen provided to fill a form or some other small item was left out for people to use, he would take it instead of giving it back. It was a temporary relief from everything else in his life that felt stagnant.
One day the applicant took a picture with his mobile phone, of a woman walking in the street. It gave him an adrenalin rush. He started taking more pictures with his mobile phone of women. Instead of taking one picture, he would take three or four pictures of the same woman. After the applicant took these pictures, he did not look at them again. At the time, he did not think he was doing anyone any harm and he was getting a rush each time he took a picture. After a while, he started taking pictures from a closer distance of women's faces and legs.
At the time he committed the disqualifying offence, the applicant was in his final year of his undergraduate degree. His end of year exams were approaching and he was feeling the pressure on him increase. The applicant wanted to do an honours year, and so needed to do well in his exams.
[12]
The disqualifying offence
On 31 October 2016, the applicant was in Kmart at Broadway Shopping Centre. When the applicant saw the victim bending over, he put his mobile telephone under the victim's dress and took pictures. It was only when he was caught and arrested that he realised how harmful his actions were. The applicant's phone had other photos of women's legs, and pornographic images of young women.
[13]
The events after the applicant's arrest
After the applicant was arrested, he felt terrible. He was so ashamed and even more depressed. He was referred by his GP to a psychiatrist Dr Satish Dayalan. The applicant attended four sessions with Dr Dayalan. He was diagnosed with depression and anxiety. Dr Dayalan discussed different treatments with him, including an online cognitive behavioural therapy program. The applicant completed 2 of the 6 modules of the online cognitive behavioural therapy program.
On 1 February 2017, the applicant pleaded guilty to the disqualifying offence and a good behaviour bond was imposed with no conviction being recorded. The good behaviour bond has now expired.
In his second affidavit the applicant explained the difficulty he had in making further appointments with Dr Dayalan in 2017. He completed 2 of the 6 modules of the online cognitive behaviour program. From the time of his arrest, he was motivated to get his life back on track. He worked hard in his honours year, sought opportunities to gain more research experience and studied for the Graduate Medical School Admissions Test exams. He also worked on the strategies and insights he learnt from his sessions with Dr Dayalan and the cognitive behavioural therapy program. He started to regularly exercise and socialise with his friends. He apologised to his mother and his girlfriend and worked on repairing his relationship with them.
The applicant understands how unacceptable his behaviour was and that it was not a harmless activity. Not only was it a violation of the women he took photos of, but it also affected his relationship with his mother and his girlfriend. He is grateful that his mother and girlfriend have remained by his side and supported him.
[14]
The applicant's future
The applicant's dream is to become a doctor so that he can combine his desire to help people and his love of science. He strongly believes that he will not reoffend in the future. He has no interest in engaging in the behaviour that led to his arrest. He understands the harm that it causes and is deeply ashamed of what he did. He has learned strategies to cope with stressful and upsetting situations. He knows that he needs to reach out to his friends and family for support and he now does this.
[15]
The oral evidence of the applicant
In cross-examination, the applicant said he took photographs of women for "thrill seeking" and for the "adrenalin rush". The applicant agreed that he had not complied with the conditions of the good behaviour bond. Before being charged he was not aware that the disqualifying offence was a sexual offence. Since being charged, he is fully aware that it is a "serious problem" and not "a trivial matter". When asked whether there were children in the shop when he committed the disqualifying offence, he said that the shop had just opened and was empty.
In answer to our questions, the applicant said he did not make further appointments with Dr Dayalan after completing his studies in 2017 because he got better quickly and put it out of his mind. When asked about the statement in his first affidavit, "I understand the harm that it causes", the applicant said it is a "traumatic experience for the victim", it is "not socially acceptable", "it violated a woman's privacy", and it is "a criminal offence". When asked about the statement in his first affidavit, "I strongly believe that I will not reoffend in the future", the applicant said he was not the type of person to "purposely harm someone", he talked out with Dr Dayalan and Dr Nielssen as to how he felt at the time of the disqualifying offence, he had seen that he should "not stay stagnant" and was exercising physically by going to the gym which was also a social experience. He wants to be a cardiologist.
[16]
The reports of Dr Nielssen
Dr Nielssen interviewed the applicant on 21 November 2016, and prepared a report dated 26 November 2016. He diagnosed the applicant with a depressive illness. Although the applicant described his offending as a form of stress relief, he was of the opinion that the applicant did not have a psychosexual disorder associated with an increased probability of further offences in the future. He recommended that the applicant remain under the care of Dr Dayalan, take medication as directed by Dr Dayalan and consider completing an online cognitive behaviour management course for depression.
Dr Nielssen interviewed the applicant on 12 November 2018, and prepared a report dated 24 February 2019. Based on the history elicited from the applicant and the applicant's presentation during this interview, he is of the opinion that the applicant:
1. does not have a disorder of abnormal sexual interest and does not have features of psychosexual disorder associated with an increased probability of further offences of a similar nature, for example, any kind of compulsion to commit offences of a similar nature;
2. has a very low likelihood of any repetition of his offending conduct because of the specific circumstances of the offence itself, the effect of his state of mind at the time, his emotional maturity since the offence, and also the extremely aversive effect of being charged with the offence; and
3. did not appear depressed, does not require any further treatment at this stage, and would seek referral for psychological or psychiatric care if he were to become depressed again as he had a positive experience of counselling and greatly improved mental health literacy as a result of his completion of the online course.
4. He also addressed the factors in s 30(1) of the WCC Act.
[17]
The oral evidence of Dr Nielssen
In his evidence in chief, Dr Nielssen said his opinion that the applicant has a very low likelihood of any repetition of his offending conduct was not just actuarial because of the rate of recidivism of 7% being low, but also was based on his assessment. The applicant had a normal heterosexual interest in women and had been in a relationship with his girlfriend for a number of years. He was much more mature than at the time of the disqualifying offence, he understood its seriousness and had a lot to lose by a repetition. His clinical opinion was that the applicant did not need any further treatment and he understood why the applicant did not complete the online cognitive behavioural therapy program. His opinions were not altered because of the knowledge that the applicant had more photographs on his phone than he understood when he first interviewed him.
In cross-examination, Dr Nielssen said that the applicant's failure to complete the online cognitive behavioural therapy program was a matter of "concern", but his experience was that young people were not good in turning up at appointments, and it was common for them not to persist with treatment. While it was a possibility that he may not seek help, people act in their best self-interest.
[18]
The reports of Dr Dayalan
Dr Dayalan reviewed the applicant on 9 and 16 November 2016 and on 18 January 2017, and prepared a report dated 27 January 2017. His opinion was that the applicant's history and presentation were consistent with a psychiatric diagnosis of major depressive disorder with comorbid anxiety symptoms. He did not form any definitive opinion as to whether the applicant's behaviour was sexually motivated or entirely attributable to his mental state but was of the opinion that his judgement at the time of the disqualifying offence was impaired as a result of his depressive disorder. He formed the opinion that the applicant's risk of recidivism was low on the basis of the applicant's insight into his mental state, motivation to engage in treatment, social support, level of functioning, the fact that he does abuse substances and had no prior history of offending.
In his Expert Witness Statement dated 21 March 2017 Dr Dayalan annexed the clinical notes and reports prepared for the referring doctor for the period of his care of the applicant between 9 November 2016 and 18 January 2017.
[19]
The affidavit of the applicant's solicitor
In his affidavit the applicant's solicitor annexes the report dated 27 January 2017 of Dr Dayalan and the letter dated 24 February 2019 to Dr Nielssen requesting an expert report about the applicant.
[20]
The three character references
The three character references, from the applicant's girlfriend, friend, and school friend, respectively, express a positive view of the applicant's character, his remorse for the disqualifying offence, and his promising medical career.
[21]
The written evidence of the respondent
The written evidence of the respondent included the NSW Police Facts Sheet prepared for the bail hearing on 31 October 2016 (NSW Police Facts Sheet), the transcript of the hearing at the Local Court on 1 February 2017 (Local Court transcript) and the "Bond to Comply with Conditions" dated 1 February 2017 and signed by the applicant (Bond).
[22]
The NSW Police Facts Sheet
The NSW Police Facts Sheet contains the following information in relation to the offence:
1. on 31 October 2016 the applicant was in Kmart at Broadway Shopping Centre at 8.30am;
2. the applicant saw the victim bending over;
3. the applicant put his mobile telephone under the victim's dress and took several photographs;
4. the victim felt something touch her leg and turned to her right. She observed the applicant crouching down with his mobile telephone in his hands;
5. the victim said to the applicant: "What are you doing? What are you doing? You taking pictures of me?"
6. the applicant was observed by the victim to be pressing on his mobile telephone quickly. The applicant deleted the photographs he had taken from his camera roll. He said to the victim: "No, I didn't. No, let me show you";
7. the victim alerted staff and the applicant was arrested by the police;
8. the applicant said to the police when questioned about his conduct: " ... the lady I guess was shopping for shoes ... I kind of ... lt's kind of ... I feel bad for saying it. I saw her bending over a bit and her dress went up. I don't know why these ideas pop into my head. That I do the thing";
9. when asked by the police what the "thing" was, the applicant replied: "I guess that's when I took the picture";
10. when asked by the police why he took the picture, the applicant replied: "I thought maybe I could see what she was wearing underneath";
11. the applicant confirmed that he did not have permission to take the photographs and confirmed that he deleted the photographs;
12. the applicant made an early admission of guilt;
13. when the applicant's phone was examined, the police found several other photographs of women wearing short or tight dresses. The photographs were generally from a low angle or under a table. The women in the photographs were unknown and either had their legs crossed or the photographs did not capture their private parts. Some of the photographs had the location of his university or suburb listed above them;
14. the applicant stated that he liked the look of women's legs;
15. the police formed the view that these photographs were attempts by the applicant to take "upskirt" images of women;
16. the police located photographs on the phone that had been saved by download or screenshot, depicting women wearing short skirts or dresses with their underwear or private parts visible. The photographs appeared to be staged. There were numerous other photographs on the phone containing adult content;
17. the presence of numerous "upskirt" photographs led the police to believe that the applicant had a preference for those types of photographs.
[23]
The Local Court transcript
At the hearing on 1 February 2017, Magistrate Walquist rejected the application for the matter to be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and made the following sentencing remarks:
There is a great concern in the community about this sort of offending and to come to the view that the most appropriate way to deal with him is not according to law but on the basis of a s 32 order, which lasts for only six months, this is obviously a problem which has gone on for a lot longer than that. I do not think it is appropriate in those circumstances, given the sort of offence it is an the fact that s 32 really can only - a person is only compellable in relation to treatment for 6 months ... I do think that he needs certainly longer under supervision ...
[24]
The Bond
The Bond recorded that on 1 February 2017 the applicant was found guilty by the Local Court of the disqualifying offence but without proceeding to conviction was directed to enter a good behaviour bond for 18 months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and accept conditions to continue to accept treatment from Dr Dayalan or another psychiatrist, attend appointments as directed and accept recommended treatment.
[25]
The written submissions of the applicant
The applicant in submissions dated 3 April 2019, after setting out the jurisdiction of the Tribunal, the relevant legislation and the applicable legal principles, the written evidence of the applicant and the psychiatric assessments:
1. addresses the matters in s30(1) of the WWC Act and submits that the applicant does not pose a real and appreciable risk to the safety of children for the following reasons:
1. the conduct that gave rise to the disqualifying offence did not involve a child;
2. the disqualifying offence is at the lower end of the range of seriousness in the range of sexual offences;
3. the psychiatric assessments of the applicant have consistently assessed the risk of the applicant reoffending as low and the most recent psychiatric assessment is that there is a very low likelihood of any repetition of his offending conduct;
4. the applicant does not have a disorder of abnormal sexual interest and does not have features of psychosexual disorder associated with an increased probability of further offences of a similar nature;
5. the applicant has not reoffended, he had no criminal record before the offence and has not been charged with any offence since then;
6. the applicant's judgement at the time of the disqualifying offence was impaired by his depressive illness and anxiety and he is managing his depression and anxiety through therapy and self-management;
7. the applicant does not require any further treatment at this stage and would seek referral for psychological or psychiatric care, if he were to become depressed again;
8. the applicant is motivated to study hard to become a doctor and a contributing member of society, and understands that, if he reoffends, he will jeopardise this future; and
9. the applicant has the support of his mother, girlfriend and friends;
1. submits that the Tribunal can be satisfied that a reasonable person with knowledge of the material before the Tribunal would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work because the reasonable person would have knowledge of the disqualifying offence and is likely to find the offence distressing and concerning, but would:
1. would also have regard to the factors in s 30(1) of the WWC Act set out above; and
2. would give weight to the psychiatric assessments of the applicant, the fact that the offending behaviour did not involve a child and the applicant's conduct since the offence;
1. submits that if the Tribunal is satisfied that the applicant does not pose a risk to the safety of children, the Tribunal can also be satisfied that it is in the public interest to make the orders sought by the applicant for the following reasons:
1. he had no criminal record before the disqualifying offence and has not reoffended or been charged with any other offence since the disqualifying offence;
2. he has diligently applied himself to his studies and wants to enter a profession focussed on helping people;
3. it would not be in the public interest to discourage offenders, like the applicant, from taking positive steps to improve their life.
[26]
The oral submissions of the applicant
Counsel for the applicant substantially repeated the written submissions and drew attention to the following matters:
1. the victim of the disqualifying offence was an adult woman and the photographs on the applicant's phone were of adult women;
2. the applicant had insight into the harm caused by the disqualifying offence;
3. the evidence of Dr Nielssen was not contradicted;
4. the applicant understood what had led to the disqualifying offence, and was now exercising and involved in social activities;
5. there was a public interest in the rehabilitation of the applicant, who is keen to contribute as a member of the community.
[27]
The written submissions of the respondent
The respondent in submissions dated 26 March 2019, after setting out the jurisdiction of the Tribunal, the relevant legislation and the applicable legal principles, the written evidence of the applicant and the respondent, and the psychiatric assessments in 2016 and 2017:
1. addresses the matters in s 30(1) of the WWC Act including in respect of "any other matters that the Children's Guardian considers necessary" in s 30(1)(k):
1. the FACS Contact Record;
2. the NSW Police Report;
3. the presence at the time of the applicant's arrest of a number of photographs in his phone consistent with "upskirt" photographs, from which it can be inferred that the offending conduct was not "one-off" offending but had been occurring for some time;
1. submits that the applicant poses a real and appreciable risk to the safety of children;
2. submits that a reasonable person, with knowledge of the particulars of the disqualifying offence and the other images on the applicant's phone, is unlikely to allow his/her child to have direct unsupervised contact the applicant whilst the applicant is engaged in child-related work;
3. submits that considering all of the evidence, it is open to the Tribunal to find that it is in the public interest that the applicant be refused a WWCC clearance.
[28]
The oral submissions of the respondent
Counsel for the respondent substantially repeated the written submissions and drew attention to the following matters:
1. the stressors which led to the disqualifying offence are still present;
2. the applicant did not take the Bond seriously;
3. the applicant in giving evidence was evasive, not responsive, did not accept the obvious, and less than truthful about his failure to complete the online cognitive behavioural therapy program;
4. the applicant would not seek treatment in the future in view of his failure to comply with the conditions of the Bond;
5. the applicant has a real risk of poor mental health in the future.
[29]
Assessment of the evidence of the applicant
We find the applicant to have been a truthful witness. In his second affidavit, he corrected his incorrect evidence about having completed the online cognitive behavioural therapy program. His failure to comply with the conditions of the Bond was readily explained because of was feeling better after his initial psychiatric treatment and completion of 2 of the 6 modules of the online cognitive behavioural therapy program, and not because he did not take the Bond seriously. His poor recollection of the hearing on 1 February 2017 and the entry into the Bond were not due to evasiveness, but to an incomplete understanding of what happened. This is not surprising in someone who is not legally trained.
The applicant has real insight into the harm caused by the disqualifying offence and has taken steps in his life to ensure the factors that led to its commission do not reoccur.
We are satisfied that the applicant wishes to contribute to the community by becoming a doctor.
[30]
Assessment of the psychiatric evidence
Dr Nielssen presented as a balanced and professional witness. We find his opinions contained in his report dated 24 February 2019 to be compelling and persuasive.
The earlier diagnoses of Dr Dayalan that the applicant's history and presentation was consistent with a major depressive disorder with comorbid anxiety symptoms, and of Dr Nielssen that the applicant has a depressive illness, are no longer accurate. The recent report of Dr Nielssen contradicts the submissions of the respondent that the applicant would not seek treatment in the future in view of his failure to comply with the conditions of the Bond, and has a real risk of poor mental health in the future.
[31]
Does the applicant pose a risk to the safety of children?
Having regard to our findings as to the factors in s 30(1) of the WCC Act (other than the factor in s 30(1)(j1) which is inapplicable), we are satisfied that the applicant does not pose a risk to the safety of children.
[32]
The seriousness of the offences, the period of time since those offences occurred and the conduct of the person since they occurred (s 30(1)(a) and (b))
The disqualifying offence is a serious offence, with a maximum penalty of 100 penalty units or imprisonment for 2 years, or both. However, it is at the lower end of seriousness in the range of sexual offences. The disqualifying offence occurred in October 2016. The applicant has not reoffended and has not been charged with any criminal offences since that time. The applicant has taken active steps to manage his depression and anxiety during this time through therapy and self-management, has diligently applied himself to his studies and has focused on becoming a contributing member of society. He has remained in a stable relationship with his girlfriend and continues to have a close relationship with his mother. He has engaged in an ongoing exercise regime which he told the Tribunal assists him to better manage any stress issues he may have.
[33]
The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant's present age (s 30(1)(d)-(g))
The disqualifying offence occurred when the applicant was 21 years old. The victim of the disqualifying offence was an adult woman. The offence took place in a department store within a shopping centre. We do not know the difference in age between the applicant and the victim. The applicant is now 24 years old.
[34]
The seriousness of the applicant's criminal record, the conduct of the applicant since the offences occurred, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(h-i))
The applicant had no criminal history prior to the disqualifying offence. He has not reoffended. He has not been charged with any criminal offences since the disqualifying offence.
We accept the opinions of Dr Nielssen that the applicant has a very low likelihood of any repetition of his offending conduct, and that, as the disqualifying offence did not involve a child, any repetition of the conduct that gave rise to the offence would be unlikely to affect a child.
This finding that the applicant is unlikely to reoffend is supported by his insight into the harm caused by the conduct of the disqualifying offence, and the steps he has taken to deal with his depressive illness.
[35]
Information given by the applicant in, or in relation to, the application (s 30(1)(j))
The applicant has provided three character references. We consider that it is significant that the applicant's girlfriend, notwithstanding the nature of the disqualifying offence, has chosen "to stay with him and by his side".
[36]
Any other matters that the Children's Guardian considers necessary (s 30(1)(k))
We do not consider that the three matters raised by the respondent, being the material in the FACS Contact Record and the NSW Police Report together with the presence at the time of the applicant's arrest of a number of photographs of women in his phone consistent with "upskirt" photographs, demonstrate that the applicant poses a risk to the safety of children.
[37]
Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work (s 30(1A)(a))?
The information that a reasonable person would require to properly consider the test in s 30(1A)(a) of the WWC Act whether "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" is the evidence set out above.
Having regard to all this evidence, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work. The reasonable person would have particular regard to the following matters:
1. the disqualifying offence did not involve children;
2. the applicant has no prior criminal history, and has not been charged or convicted of any other offence since the disqualifying offence;
3. the applicant has remained in a stable relationship with his girlfriend since the disqualifying offence;
4. the applicant no longer has a depressive illness;
5. Dr Nielssen's opinion that the applicant has a very low likelihood of any repetition of his offending conduct.
[38]
Is it in the public interest to make the orders sought by the applicant (s 30(1A)(a))?
We are satisfied that it is in the public interest to make the orders sought by the applicant for the following reasons:
1. the applicant should not be turned away from his commitment to his chosen career of becoming a doctor;
2. the applicant should be encouraged to acquire qualifications, experience and expertise for the benefit of others through becoming a doctor;
3. the applicant has demonstrated that he has been rehabilitated.
[39]
Has the applicant rebutted the presumption that he poses a risk to the safety of children?
Having regard to our findings, we are satisfied on the balance of probabilities that the applicant has rebutted the presumption that he poses a risk to the safety of children.
[40]
Orders
We make the following orders:
1. An order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act (the Child Protection (Working with Children) Act 2012 (NSW)) in respect of the offence of the of filming a person's private parts under s 91L of the Crimes Act 1900 (NSW).
2. An order pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) that the respondent is to grant the applicant a Working With Children Check clearance.
3. An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting, 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 including mandatory reporters or risk of harm reporters.
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: 15 May 2019
Parties
Applicant/Plaintiff:
DQD
Respondent/Defendant:
Children's Guardian
Legislation Cited (9)
(the Child Protection (Working with Children) Act 2012(NSW)
Jurisdiction, relevant legislation and applicable legal principles
Section 3 of the WWC Act provides that its object is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances.
Section 4 of the WWC 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 this Act."
Section 5B of the WWC Act provides that the expression "risk to the safety of children" means a real and appreciable risk to the safety of children.
The respondent is not permitted to grant a WWCC clearance to a person convicted of an offence specified in Schedule 2 to the WWC Act, if the offence was committed as an adult: WWC Act, s 18(1)(a). The offence of filming a person's private parts, under s 91L of the Crimes Act 1900 (NSW), is specified in cl 1(1)(p) of Schedule 2.
Having committed a Schedule 2 offence, the applicant is a "disqualified person": WWC Act, s 18(1). However, the Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of the WWC Act in respect of an offence specified in the order (an enabling order): WWC Act, s 28(1). If the Tribunal makes such an order, it may also order the respondent to grant the person the subject of the order a clearance: WWC Act, s 28(6).
An applicant must fully disclose to the Tribunal any matters relevant to the application: WWC Act, s 28(5).
In any proceedings where 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: WWC Act, s 28(7).
When determining an application, under s 28(1) of the WWC Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the WWC Act:
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(i1) any order of a court or tribunal that is in force in relation to the person,
(j) any information given by the applicant in, or in relation to, the application,
(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,
(k) any other matters that the Children's Guardian considers necessary.
Further, pursuant to s 30(1A) of the WWC Act, the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children. Section 30(1A) provides:
(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.
As indicated in the objects of the WWC Act and s 4, the Tribunal's jurisdiction under s 28 remains protective and not punitive in nature. That is, the object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61] (Young JA)(with whom Hodgson JA at [1] and Handley AJA at [78] agreed) in respect of the former Child Protection (Prohibited Employment) Act 1998 (NSW) (CPPE Act).
The issue for determination is whether the applicant has established, on the balance of probabilities, that he does not pose a risk to the safety of children: AYU v NSW Office of the Children's Guardian at [35]; Commissioner for Children and Young People v FZ at [61] in respect of the former CPPE Act.
The definition under s 5B of a "risk to the safety of children" draws upon the explanation given in relation to the word "risk" as it appeared in the former CPPE Act of "whether there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]; CJT v Office of the Children's Guardian [2016] NSWSC 738 at [40].
In CJT v Office of the Children's Guardian, Fullerton J at [39] observed that the remarks of Young CJ in Eq about the meaning of risk in Commission for Children and Young People v V at [42] have "been consistently applied in construing the concept of a 'risk to the safety of children' for the purposes of ss 27 and 28 of the Working with Children Act". In BKE v Office of the Children's Guardian (a case concerning an application for an enabling order), Beech-Jones J at [26] referred to the meaning of "risk to the safety of children" in s 28(7) of the WWC Act and said that this was to be understood by reference to the comments of Young CJ in Eq in Commission for Children and Young People v V at [42]. His Honour at [28] also said that "the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children".
In CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered in ZZ v Secretary, Department of Justice [2013] VSC 267, where Bell J [215]-[216] held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.
In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136]-[137] said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent's submissions as to weight). A reasonable person whilst approaching the manner with some caution would in our view find that any risk was insufficient to cause them to have concerns about access to their child.
In CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 at [75] the Tribunal held that the concept of public interest gives priority to the broader interests of the community over private interests, and referred to ZZ v Secretary, Department of Justice where Bell J at [202] adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.
In ZZ v Secretary, Department of Justice Bell J at [202] referred to the relevance and importance of rehabilitating offenders. Bell J at [203] said:
In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.
In Commissioner for Children and Young People v FZ Young JA at [67]-[68] expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84] that the applicant carried the onus on the Briginshaw standard to establish that he is not a risk to children.
It has been observed that it is difficult to envisage how the Briginshaw standard applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in the Tribunal that pursuant to s 38(2) of the NCAT Act is not required to apply the rules of evidence: BKE v Office of the Children's Guardian at [29].