EMX v Children's Guardian - [2022] NSWCATAD 222 - NSWCATAD 2021 case summary — Zoe

NSWNSWCATAD

EMX v Children's Guardian

[2022] NSWCATAD 222

NCAT Administrative and Equal Opportunity|2021-06-02

View original source

At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2021-06-02

Source

Original judgment source is linked above.

Judgment (29 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]

Reasons For decision

The applicant, EMX, seeks administrative review, under s 27 of the Child Protection (Working with Children) Act 2015 (NSW) (WWC Act), of the decision of the Children's Guardian (the respondent) refusing to grant him a working with children check clearance (clearance). The respondent refused to grant the applicant a clearance because she was satisfied, following a risk assessment, that the applicant posed a risk to the safety of children.
The background to the applicant's application for a clearance is not straight forward, but neither party has questioned the Tribunal's jurisdiction to hear and determine this application: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 7 and 9 and WWC Act s 27. We have dealt with this issue in more detail under the heading 'Background' below.
The role of the Tribunal is to determine the correct and preferable decision having regard to the relevant factual material and the applicable written and unwritten law: ADR Act, s 63(1). The orders the Tribunal can make include an order affirming the decision of the respondent, varying that decision, setting the decision aside and making a new decision in substitution thereof, or setting the decision aside and remitting the matter to the respondent for reconsideration: ADR Act, s 63(3).

[3]

Background

The applicant lodged his application for a clearance in November 2017. At the time the applicant was almost 67 years of age with a serious criminal history that included a number of prohibited drug supply charges, a charge of sexual intercourse without consent and a charge of the now repealed offence of homosexual intercourse. The offending conduct occurred in 1999 and 2000, after the death of the applicant's long term partner. In 2001, the applicant was convicted of three charges of supplying a prohibited drug and the two sexual offence charges. In 2001, the NSW District Court sentenced the applicant to a total eight years imprisonment, with a non-parole period of four years and six months.
In 2002, on appeal by the applicant, the NSW Court of Criminal Appeal reduced the total sentence imposed on the applicant to seven years imprisonment with a non-parole period of three years and six months. In reducing the applicant's sentence, the Court of Appeal held that the sentences imposed by the District Court did not sufficiently reflect the extent of the applicant's medical condition (related to the 1995 brain injury he had sustained during a break-in at his home) and its effect upon his capacity to make rational and appropriate decisions as to his behaviour and to control it.
By reason of his sexual offending and convictions, the applicant was a 'prohibited person' under s 5 of the then Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) (CPPE Act), which prohibited him from undertaking or remaining in child-related employment, (including as a volunteer) unless the then Commission for Children and Young People, the Industrial Relations Commission, or the former Administrative Decisions Tribunal (ADT) made an order declaring that the Act was not to apply to him in regard to the disqualifying sexual offence of which he was convicted: CPPE Act, ss 6, 8A and 9.
The CPPE Act was repealed in January 2007, with the commencement of the provisions in Sch 2 of the Commission for Children and Young People Amendment Act 2005 (NSW) (repealed), which inserted the same CPPE Act legislative scheme into Part 7 of the Commission for Children and Young People Act 1998 (NSW) (repealed) (CCYP Act). These amendments did not alter the applicant's status as 'prohibited person' by reason of his 2001 convictions of sexual offences, or his ability to seek a declaration by the ADT in regard to those convictions: CCYP Act, ss 33B(1)(a) and 33I.
In June 2007, after the expiry of his parole, the applicant made an application to the ADT for an order under s 33I of the then CCYP Act. In February 2008, at a hearing of the applicant's application, the ADT made an order declaring that: … [the] Child Protection (Prohibited Employment) Act 1998 is not to apply to the applicant in respect of the offence(s) of sexual intercourse without consent and commit an act of indecency assault of which he was convicted on 6 July 2001 in the District Court of Sydney.
No reasons for decision were requested or published by the ADT. However, from the information before the Tribunal, the applicant's application was made under s 33I of the CCYP Act and not the CPPE Act. That application was based on the applicant's 2001 sexual offending convictions. Hence, it is not clear why the ADT's orders are stated to have been made under the CPPE Act, other than this being no more than a typographical error, or an unintentional reference to the wrong Act. In any event, in our view nothing turns on this error.
Orders made under s 33I of the CCYP Act remained in force unless varied or revoked, by the ADT, on the application of the Commission for Children and Young People: CCYP Act s 33M. Orders made under s 9 of the CPPE Act also had no time limit placed on it.
While the ADT had the power to make an order subject to conditions (see repealed CCYP Act, s 33I(6) and CPPE Act s 9(9)), no conditions were in fact imposed by the ADT when making the declaration it made in favour of the applicant. Hence, the applicant was subject to an unconditional declaration under the then CCYP Act which meant that he had no restrictions placed on his ability to work in child-related work.
The WWC Act came into force on 15 June 2013 and on that Act coming into force, the CCYP Act was repealed. The WWC Act introduced a new legislative scheme that required all persons engaged in, or wishing to engage in 'child-related work' to be the holder of a working with children check clearance (clearance): WWC Act, s 8. That is, the WWC Act was not limited to 'disqualified persons', it applied to any person wishing to engage in child-related work (including as a volunteer). Child-related work was also very broadly defined and included work and roles not previously covered und the CCYP Act, or the CPPE Act.
The WWC Act had a staged approach in that not all persons were required to make an application for a clearance at the time the WWC Act came into force.
Consistent with the provisions of the repealed CCPE Act and the CCYP Act, s 18(1) of the WWC Act provides that a clearance must not be granted to a 'disqualified person', which was a person convicted before, on or after the commencement of s 18(1) of a 'disqualifying offence' specified in Sch 2 of that Act. Included in the list of 'disqualifying offences' in Sch 2 is the sexual offence of which the applicant was convicted.
Again, consistent with the provisions of the repealed CCPE Act and the CCYP Act, s 28 of the WWC Act makes provision for a 'disqualified person' person (other than those convicted of the murder of a child) to make an application to the Tribunal seeking an order declaring that he or she is not to be treated as a 'disqualified person' for the purpose of the WWC Act in regard to his or her 'disqualifying offence'.
The WWC Act also contained a savings and transitional provision in regard to those persons who had obtained an unconditional declaration under ss 33 or 33I of the CCYP Act in regard to their conviction of a 'disqualifying offence': see WWC Act Sch 3 cl 6, which provides as follows: 6 Existing prohibited persons declarations (1) This clause applies to a person who is the subject of an order containing a declaration (in force immediately before the repeal of the former provisions) under section 33H or 33I of the former provisions that Division 2 of those provisions is not to apply to the person in respect of a specified offence (an existing declaration). (2) On the application of this Act to a person to whom this clause applies: (a) a person who is the subject of an unconditional existing declaration is taken to be the subject of an order under Part 4 of this Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence, and (b) any other person to whom this clause applies is to be treated as a disqualified person for the purposes of this Act.
Hence, by reason of this savings and transitional provision, the applicant was not a 'disqualified person' for the purpose of the WWC Act.
We note that in 2015, s 26 of the WWC Act was amended to expand those persons who were prohibited from making an application under Part 4 of the WWC Act: see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2 cl 26. This included those persons who had been convicted of murder and other specified 'disqualified offences', that was committed by the person while he or she was an adult, and for which the person received a sentence of full time custody. Included in the list of specified 'disqualified offences' in s 26 is the sexual offence of which the applicant was convicted. However, by reason of the declaration made by the ADT in 2008, and the abovementioned savings and transitional provision, the applicant's 2001 sexual offence conviction did not fall within this provision.
However, given his criminal history, the applicant remained subject to a risk assessment, by the respondent, under ss 14 and 15 of the WWC Act.
On 5 November 2020, the respondent decided to refuse the applicant's application, because she was satisfied, following her risk assessment, that the applicant posed a risk to the safety of children: WWC Act, s 18(2). The respondent made this finding having considered the factors in s 15(3) and the additional reasonable person test in s 15(4A)(a) and found that the reasonable person test was not satisfied. That is, while the respondent formed a view that, based on the material before her and the s 15(3) factors, the applicant did not pose a risk to children, she did not consider that a reasonable person would allow his or her child to have direct contact with the applicant, and on this basis alone she could not determine that the applicant did not pose a risk to the safety of children.
The reasonable person test is in the following terms: (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) …
At the conclusion of the hearing of the applicant's application, counsel for the respondent, submitted that based on a s 30(1) WWC Act risk assessment we could be satisfied that the applicant poses a risk to the safety of children. That submission was based on the evidence of the applicant's expert, Dr Kim Dilati a forensic psychologist who recommended the applicant undertake a two yearly review and assessment to manage any ongoing risk. The applicant, on the other hand, submits that on the material before the Tribunal we cannot be satisfied that he poses a risk to the safety of children.

[5]

The WWC legislative scheme

The objects of the WWC Act are 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 a working with children check clearances: see WWC Act, ss 3, 8 and 9.
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 that Act.
The word 'children' is defined to mean persons under the age of 18 years: WWC Act, s 5(1).
Section 8(1) of the WWC Act prohibit a person from engaging in child-related work unless the person is the holder of a clearance, or has a current application for a clearance, for consideration, by the respondent. Hence, the applicant, having made his application for a clearance in November 2017, was entitled to continue with his work up until 5 November 2020 when the respondent refused his application. A similar prohibition is contained in s 9 of the WWC Act in regard to employers.
Child-related work is broadly defined in ss 6 and 7 of the WWC Act. A clearance is not granted for a specific category of child-related work. Once granted, it is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
Section 18 of the WWC Act prescribes how the respondent is to determine an application for a clearance. That section relevantly provides as follows: 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) … (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.
Section 14 of the WWC Act provides that a person is subject to an 'assessment requirement' if any of the matters specified in Schedule 1 apply to that person (the assessment requirement triggers).
Section 15(1) of the WWC Act, provides that the respondent is to conduct a risk assessment in order to determine whether an applicant for a clearance poses a risk to the safety of children. Section 15(3) provides that subsection 15(1) does not limit the circumstances in which the respondent may conduct a risk assessment of an applicant for a clearance. In this application there has been no suggestion by the applicant that the respondent had no power to conduct a risk assessment.
The expression 'risk to the safety of children' is defined to be a reference to 'a real and appreciable risk to the safety of children': WWC Act, s 5B.
A clearance once granted, ceases to have any effect after five years, unless sooner cancelled or surrendered: WWC Act, s 22(1).
The WWC Act makes no provision for the respondent to grant a clearance subject to conditions. Nor does the Act make provision for the Tribunal, on administrative review, to make an order granting a clearance subject to conditions.
As we have already noted, s 27(1) of the WWC Act, gives a person the right to seek administrative review of a decision by the respondent, made under s 18(2), to refuse his or her application for a clearance because she is satisfied that the person poses a risk to the safety of children. Where a person does seek administrative review under this section, s 27(4) provides that the person must fully disclose to the Tribunal any matters relevant to his or her administrative review application.
Section 30(1) of the WWC Act, which is in similar terms to s 15(3) of that Act, sets out what the Tribunal must consider in determining whether the applicant poses a risk to the safety of children. That section 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 … matters that caused a refusal of a clearance or imposition of an interim bar, (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 … 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 … 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.
Where, having consider the s 30(1) factors, the Tribunal is required consider the following two part test prescribed in s 30(1A) of the WWC Act when determining whether it is or is not satisfied that the applicant poses a risk to the safety of children: (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.

[6]

The material before the Tribunal

The applicant relied on the following material in support of his application: 1. the material he provided to the respondent for the purpose of her risk assessment, which included: 1. a statutory declaration he made and dated 25 October 2018. Attached to the statutory declaration is a copy of the ADT's Notice of Decision, dated 6 February 2008. The decision of the Tribunal was in the following terms: At the hearing held on 5 February 2008 the following decision was made: The Tribunal declares that the Child Protection (Prohibited Employment) Act 1998 is not to apply to the applicant (i.e. the applicant in these proceedings)in respect of the offence(s) of sexual intercourse without consent and commit an act of indecency assault for which he was convicted on … July 2001 in the District Court in Sydney. 1. a reference from his employer, with whom the applicant had been employed since 2008 and up to the time his current application for a clearance was refused; 2. two further references from colleagues with whom the applicant has worked for many years; 3. a copy of the June 2020 Notification, from the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, advising that his application for citizenship had been approved; 4. a further statutory declaration he made and dated 22 September 2020; 5. a forensic psychology report of Dr Kim Dilati, dated 6 September 2018; 6. a copy the decision and reasons for decision, dated 4 December 2019, by the Commonwealth Administrative Appeal Tribunal (AAT) concerning the applicant's application for citizenship; 7. a copy of the applicant's June 2007 application to the ADT for an order under the CCYP Act, together with the affidavit the applicant swore in support of his application and the risk assessment report of Dr Christopher Lennings, forensic psychologist, dated 21 February 2007; 1. a further report of Dr Kim Dilati, forensic psychologist, dated 11 March 2021; and 2. a further report of Dr Christopher Lennings, dated 16 April 2012.
The respondent relied on a large bundle of documents (1366 pages) containing a copy of every document or part of a document that was in her possession, or under her control, at the time the applicant lodged this application and which the respondent considers to be relevant to the Tribunal's determination of the applicant's application: ADR Act, s 58. We understand that a large proportion of this information was before the ADT when it heard the applicant's 2007 application. As noted above, it also included the material the applicant had provided to the respondent in support of his 2017 application for a clearance.
The respondent also relied on a smaller bundle of documents (54 pages) which contained copies of responses to further enquires made by the respondent relevant to the applicant's review application.
At the hearing of the applicant's application, the applicant and Dr Dilati gave evidence and were cross-examined by counsel for the respondent.

[7]

The applicant's 1999 and 2000 offending

The applicant's offending, which occurred between August 1999 and mid 2000, is the only record of any offending by the applicant.
Between August and November 1999, the applicant was charged with the following offences: 1. August - 1. two charges of supply methamphetamine contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) - each charge related to the applicant's supply of the prohibited drug to two males, M1 and M2; and 2. a charge of committing an act of indecency contrary to s 61N of the Crimes Act 1900 (NSW) as it applied at that time - this charge related to the applicant having commenced masturbating in front of M1 or M2; 1. October and November 1999 - 1. a charge of supply methamphetamine contrary to s 25 of the Drug Misuse and Trafficking Act 1985 - the charge related to the applicant's supply of the prohibited drug, over a number of days, to three young males in their late teens, MT1, MT2 and MT3 who were staying in his home, and a young male prostitute, MT4; 2. a charge of supply of cannabis to MT 3, contrary to s 25 of the Drug Misuse and Trafficking Act 1985; 3. a charge of hindering police contrary to s 315 of the Crimes Act - the conduct the subject of this charge and the following charges occurred in early November 1999, when the applicant's then partner, with whom he lived, died from a heroin overdose. Prior to the arrival of police, the applicant removed all syringes and other drug paraphernalia; 4. a charge of self-administering methamphetamine contrary to s 12 of the Drug Misuse and Trafficking Act 1985 - this self-administration occurred in the presence of one of the young males who was staying with the applicant; and 5. a charge of administering methamphetamine to the young male who was staying with the applicant contrary to s 13 of the Drug Misuse and Trafficking Act 1985.
In February 2000, whilst on bail, police found the applicant to be in possession of 15 grams of methamphetamine while he was near an area that was frequented by male prostitutes. Police also found a further 2 grams of methamphetamine at the applicant's unit and he was charged with a further supply offence under s 25 of the Drug Misuse and Trafficking Act 1985.
In May 2000, again whilst on bail, the applicant was charged with the following offences: 1. a charge of supply methamphetamine contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) - this charge related to the applicant having supplied the prohibited drug, on 20 occasions, to two young males, MT5 and MT6, who had moved into the applicant's home, and another two young males, MT7 and MT8, the applicant had approached in the city and invited to his home on the pretext of taking their photographs; 2. a charge of assault with an act of indecent homosexual intercourse with a male between 10 and 18 years contrary to s 78K of the Crimes Act 1900 and a charge of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 - these offences occurred on the same day and victim of each offence was MT5, who was 16 years of age. On the day in question, while at the applicant's home, the applicant had supplied MT5 with amphetamines, some of which MT5 self-administered.
The applicant was indicted and convicted of the charges set out at [46(1)], [44(2)(a)], [45] and [46(2)] above. The remaining charges laid against the applicant were taken into account by the District Court in sentencing the applicant on the charges of which he was convicted.

[8]

The applicant's evidence

In our opinion, the applicant presented as a witness of truth and we are satisfied that he fully disclosed all matters relevant to his application.
The applicant migrated to Australia in the late 1960's when he was 17 years of age. After arriving in Australia, the applicant obtained a diploma in Photography (Science) and undertook further post-graduate training in London. When he returned to Australia, he obtained a senior position in the Audio Visual Unit of a major Sydney teaching hospital. He held that position for 25 years.
In late 1994, the applicant's partner of 25 years died from AIDS. Earlier that year the applicant took long service leave to nurse his partner.
In early 1995, a number of persons broke into the applicant's home. During this break-in the applicant's head was hit repeatedly and he sustained a fracture of his brain and a subarachnoid haemorrhage. He was left with a number of persistent disabilities due to brain damage and was also assessed as having post-traumatic stress disorder.
In 1999, the applicant suffered a stroke due to his brain injury and was medically retired from his job. In the same year, his new partner of two years died from a drug overdose. At the time, the applicant had also become a user of illegal drugs.
The applicant fully acknowledged his 2000 offending and the seriousness thereof.
In his 2007 affidavit, the applicant said and noted that: 1. he regarded the period of his offending was an aberration that he was intent on never repeating. The aberration he said was due to the death of his long term partner in 1994, the 1995 assault on him, the death of his mother, and a nephew who he was close to. He said it was a period where he felt that he had lost control of his life and when had the funds to feed his addiction; 2. while in prison, he had successfully undertaken the sex offenders' treatment program. He said that after having completed this program, he attended the weekly group counselling for sex offenders; 3. he was released on parole at the first available opportunity in November 2003. His release was conditional on him undergoing 15 months of weekly psychological treatment, which he did. He said that on his last consultation, his treating psychologist told him he was assessed at the lowest category of re-offending; 4. after completion his period of parole, he did not undergo any further psychological or psychiatric treatment as he felt he did not need it and he had not been told to do so; 5. following his release, he commenced a course at TAFE so as to obtain the necessary qualification to be an Alcahol and Other Drugs worker. He said that ideally, he wanted to again work as a client intake assessment worker in medical photography in the Alcohol & Other Drugs field; 6. he said he was not in a relationship and had not taken any illegal drugs since his arrest in 2000. Since leaving gaol he had been randomly tested for drugs and no positive tests had been recorded. He did not drink alcohol other than occasionally; 7. his social life involved meeting friends about his own age from his local church which he attends weekly. He does not frequent any area known to be frequented by male prostitutes or where illegal drugs can be obtained; and 8. at the time of swearing his 2007 affidavit, he was in his last year of his TAFE study and had secured a placement at an organisation concerned about Hepatitis, but was unable to go into the volunteer program due to his prohibited employment status at that time. He said that while he did not wish to work with children, he would have come into contact with minors as a worker in the volunteer program. Hence, it was on this basis that he made his 2007 application to the ADT.
The applicant did not find paid employment until 2008, but did do volunteer work. He was employed by the charitable organisation for which he had undertaken volunteer work and remained employed with that organisation for 12 years. In January 2016, he was promoted to the position of Senior Support Social Worker in this organisation, where he remained until his application for a clearance was refused (November 2020). In these positions, the applicant worked with marginalised young adults and adults who presented with addictions, homelessness, trauma, mental health disorders, aggression and offending. His role was to provide support services for these young adults and adults.
The applicant was not subject to any disciplinary action during this time.
In December 2019, the applicant successfully sought administrative review, by the AAT, of a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), to refuse his application to become an Australian Citizen, because he found that the applicant was not a person of good character by reason of his 1999 and 2000 offending. The AAT set aside the decision of the Minister and remitted the decision with a direction that the applicant was a person of good character. In its reasons for decision the AAT said: The offending for which he [the applicant] was sentenced to imprisonment has been his only offending. He impressed me as a witness of truth with good insight into his offending. His period of offending stands out as the exception in a long period of previous and subsequent good behaviour. He has worked for the poor and marginalised in a conscious endeavour to make up for his past wrongs. I accept that he is now of good character.
In this case the applicant reiterated that he did not seek to work with children but understands that his volunteer work may include young adults. Nor did he intend to work in photography. He only seeks a clearance so that he can continue with his work as a volunteer, which he has found meaningful and believes he can continue to contribute to.

[9]

Reports of Dr Lennings

In February 2007, Dr Lennings interviewed and conducted a risk assessment of the applicant for the purpose of his 2007 ADT application.
In his report of that assessment, Dr Lennings said: 1. using the STATIC-99 instrument, the applicant was assessed as low-moderate - Dr Lennings went on to say that the applicant's presentation suggested that clinical and dynamic factors may be important in moderating his risk; 2. in this regard, the applicant's executive functioning represented an ongoing risk in finding himself in compromising situations, through difficulties in apprehending signals and clues; 3. there was no evidence of the presence of major risk factors associated personality dysfunction in the applicant's life at that time; and 4. in conclusion, he was of the opinion that whilst the applicant was in the low moderate risk group, he was probably low risk in terms of committing any sexual or violent offence. However, Dr Lennings recommended that, if the applicant were to return to photography, any order made by the Tribunal be subject to a condition that would require him to have another adult present. He also said that he did not consider the applicant to be suitable to work as a drug and alcohol worker at that time, because, in his opinion, the applicant himself was far too vulnerable.
In April 2012, Dr Lennings again interviewed and assessed the applicant. On this occasion he assessed the applicant for the purpose of his 2012 application for Australian citizenship. In his report Dr Lennings concluded: [The applicant's] situation is a complex one. He was a man of excellent character prior to a series of catastrophic psychological and then neurological blows that unhinged his behaviour through the latter part of the 1990's and into the early period of 2020. He has shown an extraordinarily good adjustment to the difficulties of that time. He remains a kind and gentle man who is focused on contributing to society and in many ways making up for what took place. He appears to be of low risk for any offence and there is no appreciable risk he might offend in a seriously violent or sexual way again. To my mind there is no appreciable risk of harm likely to any Australian citizen by [the applicant's] behaviour. …

[11]

6 September report

Dr Dilati also interviewed and assessed the applicant in late August 2018 for the purpose of the purpose of his citizenship application.
In her report of 6 September 2018, Dr Dilati noted that she had been requested to assess the applicant's risk of reoffending, the circumstances that led to his previous offending as well as evidence to suggest that the applicant had engaged in effective rehabilitation and reformed his behaviour.
In assessing the applicant, Dr Dilati also administered a number of tests including the STATIC-99 instrument, which placed the applicant in the low-moderate risk category.
In her report, Dr Dilati noted that the applicant's 'psychosexual and offending conduct was fuelled by impulsivity as a result of extensive drug use and problems managing difficult emotions'. Dr Dilati said that the applicant had demonstrated longstanding difficulties in decision-making and rational thinking, which manifested in impulsive sexual behaviours and criminality, which ultimately led to his incarceration, 27 … [however] whilst in custody, [the applicant] ceased his drug use and appeared t take advantage of the treatment opportunities available to him. As a result, [the applicant] was able to abstain from substance use since his release in 200 and maintain lawful employment in an area where he is supporting others to achieve sobriety, insight and meaningful occupation. 28 There was no evidence suggestive of a relapse in his behaviours since his release from custody, which is promising. Although [the applicant's] historical risk loading remains static, his clinical and future risk items are dynamic. As such he presents with several protective factors, which reduces his risk of recidivism. The protective factors noted are meaningful occupation and stable employment, his mature age, stable accommodation, resolved impulsivity, financial stability, emotional stability, prosocial associates and peers, prosocial attitudes and behaviours, level of increased insight into his past behaviours and mental state, abstinence from drug use, reduced alcohol use, and his level of cognitive functioning which serve as significant protective factors from future recidivism.
Dr Dilati concluded her report by recommending that the applicant receive his Australian citizenship on the grounds that: [he] was well and truly reformed his behaviours and attitudes since he was released from custody. For the past 13 years, he has maintained his good character as evidenced by his level of remorse and responsibility for his previous offending conduct; he has abstained from drug use, illegal activities, and deviant or antisocial behaviours or attitudes, which suggest a level of rehabilitation …

[12]

11 March 2021 report

On 11 March 2021, Dr Dilati conducted a further interview and assessment of the applicant for the purpose of this application.
In her report, Dr Dilati: 1. noted that there was no evidence suggestive of a relapse in the applicant's behaviour since his release from custody. There were also no significant changes in his mental state since she had assessed him in 2018; 2. reiterated that while the applicant's historical risk loading remains static, his clinical and future risk items are dynamic. In this regard , the applicant presented with several protective factors which reduced his risk of recidivism. In his 2018 assessment the applicant presented with more protective factors such as his meaningful occupation, stable employment and financial stability, which were compromised due to being refused a clearance. Nevertheless, the applicant: … [continued] to present with several other protective factors such as his age, stable accommodation, resolved impulsivity, emotional stability, prosocial associates and peers, prosocial attitudes and behaviours, level of increased insight into his past behaviours and mental state, abstinence from drug use, reduced alcohol use, and his level of cognitive functioning which serve to mitigate future recidivism. 1. noted that it was important to provide the applicant with employment in an area which he considers meaningful and rewarding considering his background history as this will serve as a protective factor in the long term; 2. noted she was of the opinion that the applicant has successfully achieved rehabilitation for his poly substance use and sexual offending behaviour and recommended that he be granted a clearance; and 3. recommended, based on the applicant's reduced sexual violence risk factors presented at the time of his assessment, that he attends a biannual review/assessment with her to 'ensure any remaining risk is mitigated' and for this purpose he will require a Mental Health Care Plan from his GP.

[13]

Oral evidence

In her oral evidence before the Tribunal, Dr Dilati explained that she takes a very conservative approach to risk management and having assessed the applicant, in her opinion, the applicant appeared to be more depressed 'and experiencing really more risk factors around depression, suicidal ideation, hopelessness, helplessness, self-deprecation, which he had little bit of that before … my concern is more to do with mental health, risk of mental health, rather than risk of sexual offending or risk of harm towards children or young adults at this point'' (T, p4-5).
In regard to risk of reoffending, Dr Dilati explained that every person who has had a history of sexual offending carries a level of risk. Hence in the applicant's case he will never carry no risk (T, p5-6). So, for him the lowest risk is a low risk.
In response to a question about the remaining risk to which she referred in her recommendation that the applicant undertake biannual review/assessments, Dr Dilati said (T p5): A. Sure I think as the practitioner this is more of a responsible decision to make and very conversative as well. Even though all four risk assessments have indicated that he has low risk of sexual offending anyone who carries this level of risk does not have no risk. So there's never going to be no risk involved and my approach, and other practitioners might not have the same approach, but my approach would be to assess his mental health and his mental and state and to see if there's any emergence of any risk factors related to sexual offending, such as hypersexuality, pornography use and some of those risk factors that were present the last time he was in a crisis. So I think it's more of a preventative but responsible approach to take with anyone who might potentially be working around children. And I think if it's not coming from me I also it would be helpful for him to see a general mental health counsellor anyway because of his depression.
Dr Dilati explained that her understanding was that the Tribunal could make an order subject to conditions and it was in this context that she had recommended the biannual review/assessments. In response to a question as to whether she would have cause to pause on her recommendation that the applicant be granted a clearance, if she were to assume that a clearance could not be given subject to conditions, Dr Dilati said(T, p6-7): A. Look I think - I think [the applicant] takes a lot of responsibility for his mental health and any residual harmful thoughts or urges that in most individuals I would expect there to be some - I would find it necessary to have conditions even if it's not a working with children check if it's around their own management of their mental health and offending. With [the applicant] he takes a lot of responsibility so I believe that if there were no conditions that he would be, you know, quite amendable - he is quite amenable to treatment that I do believe he does have some insight to if he were to be granted, if he were to be granted that he would seek help if there was any change his thought processes, in any of these risk factors, that we've noted. So in most cases I would say, that's really not enough it's not sufficient enough but with [the applicant] he takes an awful amount - he does have, he is quite responsible and does have that level of insight to seek help since he's been convicted.
In response to a question as to why she was of the opinion that the applicant was pro-active about his mental health Dr Dilati said (T p7): A. …. [Around] his mental health, around his depression, around his - the low self-esteem, self-depreciation, helplessness, and hopelessness. I'm not quite sure he is as motivated because he finds it - we're looking at different constructs here. So I think that if he found that if it was a problem he's more likely - he's more happy to suffer in silence when it comes to those depressed because he's not hurting anyone rather than be a potential for him to hurt someone. So he's more likely to seek help around these other risk factors of sexual violence rather than risk factors of mental health and harming himself potentially. Which he hasn't necessarily, you know, expressed in great detail around suicidal ideation but that's where he - that's how he functions at the moment that he's less concerned about himself rather than the potential of hurting others.
In response to a question about the applicant's coping mechanism now as compared to the past, Dr Dilati said (T p8): A. Yeah, look, he used a lot of drugs and alcohol around that time. He had anti-social associates around that time. There was really no responsibility in terms of - you know, of taking a proactive approach to seeking help. There was a lot of cognitive distortions around that time as well, which - you know, around the justification, lack of responsibility, probably some minimisation around his offending. I think with treatment in custody and post-gaol as well, he's - he's developed some insight. He's - he's changed his entire lifestyle in the sense that he was working as well and so he was distracted for a long period of time with meaningful employment, which gave him a sense of wellbeing, a sense of empowerment as well and a sense of trying to right the wrongs that he has done. So there was that sort of altruistic sense as well. … So I think that that was - he had a lot of pro-social, you know, activities following this, and I think his sense of self also developed and he was quite remorseful. Whereas, at the time of the offending conduct, it wasn't evident whether there was that sense of remorse or empathy leading up to it. So there's been a lot of - a lot of internal change, a lot of cognitive changes and the lack of drug and alcohol use, financial stability that he has had for some time - not so much now - but the financial stability, his mental state had improved as well, and I think he realised that he can seek help if he needed to and he knew how to do that as well. He was able to identify some of his thought processes that led to the offending conduct with that insight and improved judgment, and he had the right social support around him at the time as well. So he had a group of friends who were quite supportive, not criminal associates at all, pro-social. So it was a real - a real combination of things that I think have helped him, plus age too and time. You know, it was such a long time ago and he's had a lot of treatment, specific treatment around his offending conduct. So he's - he's presented quite consistently with his coping responses as well. But, as I said, it is very different to depression and how people cope with depression. We're looking at very different patterns and pathways.
In response to a question about the executive functioning of the applicant today given his 1995 brain injury, Dr Dilati said this was stable which enabled him to still be able to do all his daily living, including self-care and financial management (T p9).
In response to a question as to whether the applicant exhibits any signs of impulsivity Dr Dilati said (T p9): A. No, no, not - I'm not concerned with impulsivity, lack of self-control, hypersexuality or any of those - in decision-making capacity at the moment, no, I don't have concerns right now.

[26]

Does the applicant pose a real and appreciable risk to the safety of children?

We agree that the applicant's 2000 sexual offending of which he was convicted and sentenced to imprisonment is very serious because it involved opportunistic predatory behaviour by the applicant towards a child for the applicant's sexual gratification. However, the question is whether, having regard to the material before the Tribunal, the abovementioned s 30(1) matters and the paramount consideration in s 4 of the WWC Act, we are satisfied that, as at the date of the hearing, the applicant poses a real and appreciable risk to the safety of children. We have carefully considered all the evidence before the Tribunal and have decided, for the following reasons, that we are not satisfied that, as at the date of hearing, that the applicant poses a real and appreciable risk to children: 1. While very serious, the applicant's offending occurred 21 years ago; 2. there is no record of the applicant having offended previously or subsequent thereto; 3. through his engagement with the sexual offenders' program while in prison and the changes he has made to his life since leaving prison, the applicant has demonstrated an insight into his offending and is remorseful for what he did; 4. the applicant has been drug free for 21 years and only drinks very occasionally and then only a small amount; 5. the applicant retrained and sought employment at the earliest opportunity. He worked for a charitable organisation helping others for more than 10 years since being released from prison. Initially he worked as a volunteer and then as an employee - it was work he found to be meaningful and rewarding. There is no record of the applicant having allegedly engaged in inappropriate conduct while at work; 6. the applicant has a new social support structure through his work and church. He is now pro-social and associates with persons who are of the same kind; 7. in 2008 (almost 12 years ago), the former ADT, found that the applicant did not pose a real and appreciable risk to children and was no longer prohibited from engaging in child-related work due to his sexual offending in 2000. There is no record of the applicant having allegedly acted inappropriately towards a child, or a young adult male under the age of 18 years since the making of the ADT's orders; 8. the AAT having found, in December 2019, that the applicant is a person of good character and should be granted Australian Citizenship. That finding having been made as a result of expert forensic psychological evidence of Dr Lennings and Ms Hare; and 9. Dr Dilati's expert opinion that, given the applicant's circumstances since his offending the likely-hood of his reoffending is low. In this regard, we do not accept the respondent's contention that Dr Dilati's recommendation that the applicant undergo biannual psychological reviews/assessments is a reflection on the likelihood of the applicant reoffending as he did in 1999/2000. On the contrary, as was made clear by Dr Dilati, during cross-examination, this was in effect a recommendation for the benefit of the applicant and his ongoing mental health.

[27]

S 30(1A) matters

Section 30(1A)(a), requires the application of an objective standard based on the views of the 'reasonable person'. It assumes that the 'reasonable person' is acquainted with all the relevant facts of which the Tribunal is aware: CYC v Children's Guardian (No 2) [2017] NSWCATAD 262 (CYY), at [26] and CHB v Children's Guardian [2016] NSWCATAD 214 at [127].
In assessing the public interest under s 30(1A)(b), priority is to be given to the broader interests of the community over private interests: CYY, at [75] and Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184. Regard should also be had to the rehabilitation of offenders: ZZ v Secretary, Department of Justice [2013] VSC 267 at [202], and the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY, at [75].
The respondent contends that the 'reasonable person' test is not met in this case. She also noted that this test was not part of the legislative scheme when the former ADT made its order, in 2008, in favour of the applicant. That is, the 'reasonable person' test is an additional requirement of which the Tribunal must be satisfied in order to make the orders sought by the applicant.
We agree with the respondent's submission that the objective seriousness of the offences of which the applicant was convicted and sentenced in 2001 would rightly be matters of concern to a reasonable person when considering whether to allow his or her child to have direct unsupervised contact with the applicant. However, these are not the only matters a reasonable person would have regard to. A reasonable person, being acquainted with all the relevant facts of which the Tribunal is aware, would also have regard to the fact that the offending occurred 21 years ago and the matters to which we refer at [100] above.
The respondent also submits that, despite the rehabilitation undergone by the applicant since his 1999/2000 offending, a reasonable person may not elect to leave his/her child unsupervised in the applicant's care because of the following: 1. the fact that the applicant remains, for life, a person registered under the Child Protection (Offenders Registration) Act 2000 (NSW); and 2. the fact that Dr Dilati has recommended that the applicant requires biannual review/assessment to ensure any remaining risks are mitigated and that the applicant continues to score within the moderate range of psychopathy.
We accept a reasonable person would be concerned about these matters. However, a reasonable person would also note: 1. by reason of his 2001 sexual offence conviction and sentence, the applicant is a registerable person under s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW), which makes provision for a court to make orders, during criminal proceedings, that the registered person comply with the reporting obligations set out in Part 3 of that Act. The purpose of these reporting obligations is to monitor the movements (e.g. proposed changes in residence, travel outside of NSW) and other changes in the personal information of the registered person so that there is early detection of offences by any recidivist child sexual offender the subject of such orders; 2. the fact that there is no record of the applicant having failed to meet his reporting obligations or that he is recidivist child offender; 3. the fact that the applicant's reporting obligations ended in early January 2019 and there is no evidence of the applicant having acted inappropriately towards a child since then or prior to that following his 2001 convictions, yet he had been lawfully engaged in child-related work for 10 years from 2008 to 2019; 4. the oral evidence of Dr Dilati concerning her recommendation of biannual psychological review/assessments for the applicant. These as, Dr Dilati explained were recommended for the applicant's own mental health and not for the purpose of mitigating risk of re-offending; 5. Dr Dilati's explanation, at [25] of her initial assessment and [60] of her subsequent assessment, of the Psychopathy Checklist - Revised (PCL-R) instrument which she used in her assessment of the applicant. This being one of several instruments that she used in formulating her assessment of future offending. At [25], Dr Dilati said: 25 … [Revised (PCL-R)], assess the risk of psychopathy in individuals, which is used to predict risk of recidivism and the probability of rehabilitation. In individuals who are assessed as having high levels of psychopathy, there is a risk of recidivism and low likelihood of rehabilitation. In individuals who are assessed as having low levels of psychopathy, there is a low risk of recidivism and a higher likelihood of rehabilitation. Furthermore, high PCL-R scores are also related to impulsivity, aggression, persistent criminality and low empathy. According to collateral and interview information, [the applicant] scored within the Moderate range of psychopathy indicating a probability of rehabilitation for [the applicant]. 1. Dr Dilati's oral evidence (T, p2-4), in which Dr Dilati explained that there were a total of 20 items in the Revised (PCL-R) instrument, with each item having a score range of 0 to 2. She explained that she took a very conservative approach in that, where she was not sure, she gave the item a score of 1. She also explained that the scoring is based on historical factors, where there is evidence of that the particular item. In the applicant's case, he was assed entirely on historical items (e.g. his 1999/2000 offending) and not his current circumstances; and 2. Dr Dilati's oral evidence that she had no concerns about impulsivity, lack of self-control, or hypersexuality in the applicant's decision-making capacity (T, p9).
For the reasons set out above, and the matters set out at [100] above, we are satisfied that a reasonable person acquainted with all the relevant facts of which the Tribunal is aware would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant is engaged in child-related work.
As pointed out by the respondent, the public interest test in s 30(1A)(b) involves consideration of competing public interests. The primary consideration being the safety, welfare and wellbeing of children, and in particular, protecting them from child abuse. The WWC Act does this by not permitting certain persons to engage in child-related work and requiring persons engaged in child-related work to have a working with children check clearance.
There is also the public interest of members of the public being able to engage in work in their chosen field and otherwise contribute to their respective communities.
In this case, for the reasons set out above, we are not satisfied that, as at the date of hearing, that the applicant poses a real and appreciable risk to the safety of children. We are also satisfied that that a reasonable person, who is acquainted with all the relevant facts of which the Tribunal is aware, would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant is engaged in any child-related work.
The applicant seeks a clearance as he wishes to continue his work within the charitable sector, which he has found to be meaningful and rewarding. On the material before the Tribunal, the applicant's contribution to the sector has been valued and rewarded.
The question is whether, his 2001 conviction is of such seriousness to find that it is not in the public interest for him to be granted a clearance. In our view, while the applicant's offending is very serious, he does not otherwise have a criminal record or otherwise come to the attention of the authorities prior to his offending or subsequent thereto. The evidence is that, on his arrest he began to change his life from what he had lived in the two to three years prior to his offending.
Hence, we are satisfied that it is in the public interest to make the orders sought.

EMX v Children's Guardian

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (6)