ECO v Children's Guardian - [2020] NSWCATAD 244 - NSWCATAD 2020 case summary — Zoe

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ECO v Children's Guardian

[2020] NSWCATAD 244

NCAT Administrative and Equal Opportunity|2020-10-02

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-10-02

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

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.

[2]

Summary

On 23 October 2019 following an application for a working with children check clearance (clearance) by the applicant, the Children's Guardian (the respondent) refused the applicant a clearance. This was on the basis that he was a disqualified person due to a prior conviction for the offence of sexual intercourse with a child between 10 and 16 years old under s 66C (1) of the Crimes act 1900 (NSW). This sexual assault occurred in 1991. As he is a disqualified person the applicant is presumed to pose a risk to the safety of children.
The applicant is now seeking an enabling order pursuant to s 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) to allow him to obtain a clearance so he can become an ambulance officer. The applicant acknowledges the disqualifying offence. It occurred nearly 29 years ago when he was 18 years old and the victim was 14 years old. The applicant and the victim had been in a romantic relationship for a short period of time. The applicant expressed his remorse and acknowledged the wrongfulness of his conduct to Police in a written statement. Since the disqualifying offence the applicant has not been the subject of any complaints or investigations relating to his conduct with children or convicted of any other offences. He is in a stable long term relationship and has two children of his own. He has maintained employment with the same employer for approximately 23 years. He has been assessed as being at a very low risk of re-offending by a Clinical Nurse Consultant with a Forensic Mental Health background.

[3]

The legal framework

The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.
Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.
The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act. It is not disputed that the role that the applicant proposes to perform is child related work.
Section 18 of the Act provides: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.
There is no dispute the Tribunal has jurisdiction to hear and determine the applicant's application: see section 28 of the Child Protection (Working with Children) Act 2012, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997.
Although no conviction was recorded against the applicant for the disqualifying offence, a conviction for the purpose of s 18 (1) (a) 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" (s 5(1) of the Act ). The applicant pleaded guilty to the disqualifying offence and a good behaviour bond was ordered and therefore for the purpose of the Act the applicant was convicted of the disqualifying offence.
When determining an application under s 28(1) of the Child Protection (Working with Children) Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the 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 Child Protection (Working with Children) 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."

[17]

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? Is it in the public interest to make the orders sought by the applicant?

Section 30 (1) (A) of the Child Protection (Working with Children) Act 2012 applies to this application. That section provides that the Tribunal may not make an order which has the effect of allowing the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that : 1. 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 child-related work, and 2. it is in the public interest to make such an order 1. In VQB v The Secretary to the Department of Justice [2013] VCAT 789 the Tribunal said this test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.
In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a "reasonable person" would need to know the applicant's criminal history being his conviction for the disqualifying offence. We are satisfied that a reasonable person would have regard to the fact it is nearly 29 years since the disqualifying offence was committed by the applicant and that he has had an unblemished record since then. The reasonable person would have regard to his stable marriage and employment history and the report of Mr Knight that the applicant's risk of recidivism are at the very low end of the range.
Having regard to the material before us and for the reasons set out above, 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 Tribunal must also be satisfied of the second part of the test in s 30 (1) (A) that the order is in the public interest.
The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.
The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant: Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 and CYY v Children's Guardian (No 2) [2017] NSW NSWCATAD 262
The applicant has committed serious offences against a child 29 years ago. He now wishes to pursue a career as an ambulance officer. It is not in the public interest that the Act operate where a person does not pose a risk to children, to preclude that person from working or volunteering with children. Having regard to the available evidence and our findings that the applicant does not pose a real and appreciable risk to the safety of children, it is in the public interest to make the orders sought by the applicant.
In summary, we are satisfied that the applicant has rebutted the presumption that he poses a risk to the safety of children. We have also decided that 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 child-related work, and that it is in the public interest to make an enabling order.

ECO v Children's Guardian

At a glance

Court

Decision date

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Judgment (19 paragraphs)

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Legislation Cited (5)

Cases Cited (4)