y material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
[2]
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.
[3]
Introduction and overview
In this case the applicant asked the Tribunal to undertake an administrative review of the respondent's decision dated 15 August 2023 ("the Refusal Decision") to refuse to grant a working with children check clearance to him on the grounds that he is a "disqualified person" within the meaning of s 18(1)(a) of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act").
The applicant is said to be a "disqualified person" as a result of having been convicted on 24 October 1990 of an offence which is specified in Schedule 2 of the Act to be a "disqualifying offence", namely the offence of sexual intercourse without consent contrary to s 61D(1) (repealed) of the Crimes Act 1900 (NSW) ("the Disqualifying Offence").
Pursuant to s 28 of the Act, the applicant sought an enabling order from the Tribunal declaring that he is not to be treated as a disqualified person for the purposes of the Act in respect of his 1990 conviction.
In any proceedings where an enabling order is sought, it is presumed (pursuant to s 28(7) of the Act) that the applicant poses a risk to the safety of children unless the applicant proves to the contrary.
In addition to the Disqualifying Offence, the applicant's criminal history reflected a period of offensive and aggressive conduct, from around 1989 to 2003. His criminal history included behaving in an offensive manner and using offensive language in or near a public place, common assault, destroy or damage property, resisting a Police Officer in execution of duty, and assault and intimidation offences against Police Officers. The applicant also failed to report for periodic detention (nine counts) in connection with the Disqualifying Offence.
After a period of almost a decade without having any criminal charges or convictions made against him, the applicant was found guilty in August 2012 of applying for child-related employment contrary to section 33C(1) of the Commission for Children and Young People Act 1998 (repealed) ("the CCYP Act") and making a false statement about his status as a "prohibited person" contrary to section 33D(2) of the CCYP Act in connection with that application for employment.
The applicant has also been the subject of reports held by the Department of Communities and Justice ("DCJ") which allege his involvement in situations of domestic violence concerning his first wife and his step-son.
The applicant contended that he does not pose a risk to the safety of children. Addressing each key area of concern, the applicant:
1. maintained his innocence with respect to the Disqualifying Offence;
2. argued that his criminal history in the period before 2003 was associated with a toxic, alcohol-fuelled relationship with his first wife and that he has since reformed his life, which includes abstaining from alcohol and drug abuse;
3. submitted that despite pleading guilty and being convicted in 2012 of applying for child-related employment contrary to section 33C(1) of the (now repealed) CCYP Act, he was at that time ignorant of the law that declared him to be a "prohibited person" pursuant to section 33B of that Act and regretted his error;
4. contended that allegations against him as noted in the DCJ records were made by his first wife in an attempt to damage his reputation and regain custody of their four children. He submitted that being awarded custody of his four children and his stepson by the Family Court of Australia in 2006 supports his contention that he is not considered to be a risk to the safety of children.
The respondent initially opposed the application for an enabling order, asserting that the applicant posed a real and appreciable risk to the safety of children. Relying upon the Disqualifying Offence being sexual in nature and serious with an accompanying threat of violence, as well as the applicant's criminal history and allegations against him in DCJ records, the respondent contended that the applicant had a tendency to be verbally (and at times, physically) abusive.
As at the date of the hearing, the Tribunal did not have before it an expert psychological or psychiatric opinion to assist in the assessment of the applicant's risk to the safety of children. The respondent's application to have the hearing adjourned to enable the engagement of a psychiatric expert to prepare a report 'on the papers', was not refused but the Tribunal decided to first hear the applicant's evidence under cross-examination and then consider the issue of an expert opinion. After hearing the evidence, the Tribunal ordered the respondent to file and serve an independent expert's report, and each party was given an opportunity to then file and serve written submissions on the report.
The respondent obtained and filed a report of Dr Jeremy O'Dea, Consultant Forensic and General Psychiatrist, dated 8 April 2024. In light of Dr O'Dea's opinion, the respondent no longer actively opposed the application and adopted a neutral position in relation to it.
For the reasons that follow, the Tribunal found that the applicant does not pose a risk to the safety of children. The Tribunal decided to grant the enabling order and ordered the Children's Guardian to issue the applicant a clearance forthwith, being satisfied that the "reasonable person" and "public interest" tests had been met.
[4]
Prohibition order
To protect against the identity of an alleged victim being disclosed, an order was made on 31 August 2023 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that 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 is prohibited.
[5]
Material and evidence before the Tribunal at the time of hearing
[6]
Filed on behalf of the applicant
In support of his application for administrative review which attached a copy of the Refusal Decision, the applicant filed the following material:
1. a 5-page personal statement by the applicant filed on 9 November 2023 ("Personal Statement") together with:
1. a personal character reference from the applicant's stepdaughter;
2. a personal reference from a friend and former work colleague, Mr BW;
3. a personal reference from a friend and former work colleague, Ms KD;
4. a personal and professional character reference from a friend and former work colleague, Ms BF;
5. a letter of recommendation in favour of the applicant from a former work colleague, Ms JG;
(altogether, marked for identification as "A1");
1. a personal statement dated 16 January 2024 from his wife (marked for identification as "A2");
2. written submissions filed on 17 January 2024 (not marked).
Contained within the Evidence Bundle filed by the respondent on 13 October 2023 (referred to below and marked for identification as "R1") were the following documents which had been provided by the applicant to the respondent:
1. A letter dated 5/6 September 2023 from the applicant (in response to a letter of inquiry dated 30 August 2023 from the Crown Solicitor's Office), attaching the following documents:
1. letter dated 24 January 2006 from Wood Roberts Lawyers (representing the applicant in custody proceedings in the Family Court of Australia) to Trenches Solicitors (representing the applicant's ex-wife) concerning placement of the applicant's step-son into the applicant's care;
2. Interim Order of the Family Court of Australia dated 22 February 2006 granting custody of the applicant's four children with his first wife to the applicant;
3. a copy of the applicant's National Police Certificate issued on 6 October 2015.
[7]
Filed on behalf of the respondent
The following material was filed on behalf of the respondent:
1. Evidence Bundle filed on 13 October 2023 (as already noted above as R1);
2. Supplementary Evidence Bundle filed on 11 December 2023 (marked for identification as "R2");
3. Written Submissions filed on 9 January 2024.
[8]
Oral evidence and submissions at the hearing
The applicant was cross-examined.
Both parties made oral submissions.
[9]
Material and evidence filed after the hearing
As previously noted, at the conclusion of the hearing on 22 February 2024, the Tribunal ordered the respondent to file and serve an independent expert report, and each party was given an opportunity to file and serve written submissions on the expert's report. Additionally, the applicant was required to notify the Tribunal and the respondent if he required the expert for cross-examination.
The respondent filed a report of Dr Jeremy O'Dea, Consultant Forensic and General Psychiatrist, dated 8 April 2024.
In submissions dated 14 May 2024, the respondent accepted that Dr O'Dea's report was generally favourable to the applicant. In light of Dr O'Dea's opinion, the respondent no longer actively opposed the application and adopted a neutral position in relation to it.
In submissions in reply dated 21 May 2024, the applicant accepted Dr O'Dea's assessment and did not require him for cross-examination.
[10]
Background and overview
The applicant is currently aged 53 and identifies as Aboriginal. In his Personal Statement, the applicant described his early childhood years as turbulent and volatile. His parents separated when he was very young, and he and his siblings lived with their mother who was an alcoholic. He described himself as being protective of his sisters from the age of 6, sleeping behind their bedroom door to prevent drunken men from entering the room and harming them.
Despite his disadvantaged upbringing, at the age of 19, he showed promise as a first grade football player.
Information about the applicant's work history between 1989 and 2012 is scant, although his Personal Statement confirms that at the age of 19, whilst playing first grade football, he commenced an apprenticeship as a cement renderer.
He has coached junior players (under the age of 14) as a volunteer in cricket and football from time to time, and it would appear that he undertook coaching commitments whilst still completing any community service orders against him in 2003, whilst also working as a painter.
He has four biological adult children with his ex-wife who is also the mother of another adult son. At various times, whilst in a relationship with his ex-wife, the applicant shared with her the care of his stepson.
The applicant's stepson became a Ward of the State in or around 2004-2005 (then aged around 14-15) and was placed in the applicant's sole care in 2006.
Pursuant to an Interim Order of the Family Court of Australia on 22 February 2006, the applicant's four biological children were ordered to reside with him.
In 2009, the applicant first met his now current wife in the context of her coordinating a course of education at TAFE equivalent to Year 10 of high school for his son. The applicant subsequently commenced a relationship with her. They started living together in 2013 and were married in 2018. The applicant's wife has one biological adult daughter who was 12 when she first met the applicant. This step-daughter lived with her mother and the applicant at various times, and she otherwise resided with her father who shared custody with the applicant's wife.
In the period 2012-2015, the applicant held a position as an Aboriginal Outreach Worker (Chronic Disease Management). He then worked as an Aboriginal Health Access Manager from 2016 to 2020. During the Covid-19 pandemic in 2020-2022, the applicant did not have formal employment but engaged in the provision of painting and decorating services. He subsequently provided services as a self-employed Cultural Consultant from 2022 to 2023.
From February 2023 until August 2023, the applicant was asked to step in as an interim CEO with an Aboriginal Land Council. On the applicant's own evidence, this was only ever intended to be a temporary position, alongside his work as a self-employed Cultural Consultant. After commencing in the CEO role, all staff were asked to have a working with children check clearance.
The applicant applied for a clearance on 4 July 2023, nominating "Entertainment for children" as the child related employment sector.
On 15 August 2023, the respondent notified the applicant that he was a "disqualified person" under s 18(1) of the Act, having become aware that the applicant had been convicted (as an adult) of a disqualifying offence as set out in Schedule 2 of the Act. The respondent advised the applicant that no clearance would be granted because of his disqualified person status and that he was barred from working with children for 5 years. The respondent also advised the applicant of his right to apply to the Tribunal for administrative review under s 28 of the Act.
Upon receiving this notification, the applicant immediately resigned as interim CEO.
A few days after receiving the respondent's notification, the applicant filed his application for administrative review with the Tribunal, within the timeframe permitted under section 27 of the Act.
The applicant has not worked since August 2023, although we note that he is engaged in a voluntary capacity with a TAFE officer to arrange for the delivery of a Certificate 3 in Guiding (Cultural Tourism) for a group of 15-20 people in his Aboriginal community who, once trained, will be eligible to find employment providing guided tours on significant cultural sites.
Pending the outcome of his application to this Tribunal, he has attempted to find employment that does not require a clearance. He asserted that his skills, cultural knowledge and experience are suited to positions that require a clearance. His motivation for a clearance is connected to what he considers to be a cultural obligation to share the knowledge that has been passed on to him by his elders and the skills that he has acquired, for the benefit of other Aboriginal people. He would like to do meaningful work in Indigenous communities which will likely bring him into contact with children from time to time, in relation to which he will require a clearance.
[11]
Issue for the Tribunal: Whether the applicant poses a real and appreciable risk to the safety of children
The issue for the Tribunal to determine is whether, applying the test in s 18(2) of the Act, it is satisfied that the applicant does not pose a risk to the safety of children.
Section 28 of the Act does not specify the test to be applied in determining whether to make an enabling order. Relying upon the decision in EOL v Children's Guardian [2021] NSWCATAD 146 (EOL) at [18], the correct test for the Tribunal to consider is whether it is positively satisfied that the applicant does not pose a risk to the safety of children. In BKE v Office of the Children's Guardian [2015] NSWSC 523 (BKE) at [25], the Supreme Court previously accepted that this approach is consistent with s 18(2) of the Act, which imposes the same threshold when the Children's Guardian is required to undertake a risk assessment.
However, where an enabling order is sought, s 28(7) of the Act provides that the Tribunal must presume (unless proven to the contrary) that the applicant poses a risk to the safety of children. The applicant therefore has the burden of satisfying the Tribunal that he does not pose a risk to the safety of children.
If the Tribunal is positively satisfied that the applicant does not pose a risk to the safety of children, it is empowered to make an enabling order in respect of the specified Disqualifying Offence. The Tribunal may then exercise its discretion to make an order for the Children's Guardian to grant the applicant a clearance.
In determining whether to make an enabling order, the Tribunal must first consider the matters set out in s 30(1) of Act. If minded to make an enabling order, the Tribunal must then consider the matters set out in s 30(1A) of the Act dealing with the "reasonable person" and "public interest" tests. These matters are addressed under the heading "Consideration" in these Reasons.
[12]
Object of the Act
The stated object of the Act is to protect children by requiring persons engaged in child-related work to have working with children check clearances:
3 Object of Act
The object of this Act is to protect children -
(a) by not permitting certain persons to engage in child-related work, and
(b) by requiring persons engaged in child-related work to have working with children check clearances.
"Children" is defined in s 5(1) of the Act to mean "persons under the age of 18 years".
"Child-related work" is defined in s 6 of the Act as involving direct contact by a worker with a child or children and that contact is part of or more than incidental to the work.
[13]
Paramount consideration in the operation of the Act
In exercising its functions under the Act, the Tribunal is to have regard to the "paramount consideration" in the operation of that Act as set out in s 4:
4 Safety, welfare and well-being of children to be paramount consideration
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.
The term "child abuse" as referred to in s 4 of the Act is not defined in that Act. However, in BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal held that child abuse would be aptly described as "maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these and includes exposure to harm caused by or being subjected to family violence".
[14]
Jurisdiction of the Tribunal is protective, and not punitive, in nature
Notwithstanding the paramount consideration in s 4 of the Act, the jurisdiction of the Tribunal is protective, and not punitive, in nature: DAI v Children's Guardian [2017] NSWCATAD 308 (DAI) at [8]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 (AYU) at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on a person such as the applicant, but to eliminate possible risks to children: CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU at [34].
More recently, in CXZ v Children's Guardian [2020] NSWCA 338 (CXZ), Basten JA at [23] elaborated on the object of the Act, specifically with respect to it not being concerned with imposing penalties:
"Legislation such as [the WWC Act] is, by its nature, protective; it does not impose penalties on individuals but is more closely analogous to licensing legislation which is designed to protect the public from persons who are not of good character or otherwise cannot be trusted to maintain professional discipline and trust in the exercise of authority or power over others."
[15]
Framework in the Act relating to disqualified persons
Under s 18(1) of the Act, the Children's Guardian must not grant a clearance to a "disqualified person", being a person convicted of an offence specified in Schedule 2 of that Act.
As previously noted, the applicant is a "disqualified person", having been convicted of an offence specified in Schedule 2 of the Act.
Pursuant to s 28(1) of the Act, a disqualified person may apply to the Tribunal for an "enabling order" declaring that they are not to be treated as a disqualified person for the purposes of that Act in respect of a specified offence.
An enabling order cannot be made subject to conditions: s 28(8) of the Act.
[16]
Obligation to fully disclose relevant matters to the Tribunal
Pursuant to s 28(5) of the Act, an applicant must fully disclose to the Tribunal any matters relevant to the application for an enabling order.
[17]
The meaning of "risk to the safety of children"
The meaning of "risk to the safety of children" is defined in s 5B of the Act to mean a "real and appreciable risk to the safety of children." The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]:
"One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…"
His Honour's consideration of the meaning of risk was cited with approval in a number of cases before the Tribunal and the NSW Supreme Court: CTE v Children's Guardian [2018] NSWCATAD 28 at [30]; BKE at [26] and AYU at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a "real and not fanciful" risk to the safety of children: CXZ at [26].
[18]
Mandatory considerations under s 30(1) of the Act to determine risk and make an enabling order
In determining whether the applicant poses a risk to the safety of children, the Tribunal must consider the matters set out in s 30(1) as set out below:
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 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.
[19]
Further considerations under s 30(1A) of the Act before making an order for the Children's Guardian to grant a clearance
If the Tribunal is minded to make an enabling order, it may also consider making an order for the Children's Guardian to grant the applicant a clearance in which case it must then consider the two-part test set out in s 30(1A) of the Act:
(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.
The Tribunal is precluded from making an order that the Children's Guardian grants the applicant a clearance unless both the tests in s 30(1A) of the Act are satisfied.
[20]
First limb of the two-part test under s 30(1A)(a) - the "reasonable person" test
The first limb of the two-part test is known as the "reasonable person" test. It requires the application of an objective standard based upon 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: CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY at [26]; PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [57].
The legislation in Victoria contains provisions similar to those in s 30(1A) of the Act. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36] (VQB), the Tribunal held that an objective test was called for by the legislation:
"… The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a 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."
The reasonable person approach taken in VQB was endorsed in NSW in CRG v Children's Guardian [2017] NSWCATAD 295 at [85] and DAI at [90]. In DAI at [91], the Tribunal said:
"In order to properly consider this test, a 'reasonable person' would need to know about the disqualifying offence, the circumstances surrounding offence, the applicant's entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him."
As previously noted, a clearance cannot be made subject to conditions. Accordingly, the reasonable person test requires that the reasonable person permit direct, unsupervised contact of their child with the applicant in the course of any child-related work, and this includes not only the work for which the applicant is now trained or the work in which the applicant proposes to engage.
[21]
Second limb of the two-part test under s 30(1)(b) - the "public interest" test
The second limb of the two-part test is referred to as the "public interest" test. It requires the Tribunal, before making an order enabling the applicant to work with children, to be satisfied that it is in the public interest to make such an order.
The expression "in the public interest" was considered by the Federal Court in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 per Tamberlin J at [9]:
"The expression "in the public interest" directs attention to that conclusion or determination that best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances."
Additionally, the notion of "public interest" was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]:
"The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question."
The matters to be considered by the Tribunal in determining whether it is in the public interest to grant an order are not specified in the Act. However, guidance on the context in which "public interest" is to be considered can be found in Hogan v Hinch (2011) 243 CLR 506 at [31] per French CJ:
"When used in a statute, the term derives its content from 'the subject matter and the scope and purpose' of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest."
Accordingly, in proceedings under the Act, the "public interest" must be considered in light of the paramount consideration under s 4 of that Act, namely, to ensure the protection of children from sexual or physical harm.
The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75]. The "public interest" is thus the interest of the public at large, and not the interest of a section of the public or an individual which does not overlap with the public interest: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 (Sinclair) per Barwick CJ at [480].
As explained by the Court of Appeal in Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75], citing Sinclair:
"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals."
When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (ZZ) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]:
"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."
[22]
Mandatory considerations in s 30(1)(a)-(k) of the Act
In determining the application, we are obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the Act.
[23]
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: s 30(1)(a)
On 11 October 1989, the applicant was charged with having had intercourse without consent contrary to section 61D(1) (repealed) of the Crimes Act 1900 (NSW). The offence was alleged to have occurred in the early hours of the morning on 6 August 1989.
The Disqualifying Offence is inherently sexual in nature and is a serious offence. A person who is convicted of the offence of sexual assault, contrary to s 61I of the Crimes Act 1900 (NSW)), is liable to imprisonment for 14 years.
The applicant denied the allegation and was not prepared to participate in a record of interview or make a statement about the matter.
[24]
Victim's account
The victim's account was that she had known the applicant's sister and family (including, of course, the applicant) for approximately three years and she had often spent the night at their house.
Her written statement was dated 10 October 1989. It described a sleepover arrangement on 5/6 August 1989 at the applicant's home. She said that the applicant came home in the early hours of Sunday morning on 6 August 1989, having been out socialising from around 6pm the previous evening. Her expectation was that the applicant would sleep on the lounge when he arrived home, which explained why she occupied one of the single beds in his room. When she was woken with the light being turned on two hours after she had gone to bed and saw the applicant in the bedroom, she simply turned over and went back to sleep.
She said she was lying on her stomach when he pushed his hand under her chest and started to rub her right breast. She pushed away from his hand, but he rolled her over and continued to rub her breast. She told him to stop, and said that she was tired and wanted to go to sleep. She tried to move away from the applicant but he began to kiss her and threatened to rape her. She struggled to get away but the applicant moved on top of her, holding her to the bed. He was naked from the waist down and removed her track pants and underpants. Her evidence was that he had penetrative sex with her for what she thought was about three quarters of an hour. She said she didn't scream out for help because she was scared he might hit her or hurt her in some way.
She heard the sliding door in the loungeroom open and saw the loungeroom light was turned on. She said that the applicant also heard the sliding door and immediately got off her and hurriedly put his jeans on. He then sat on the other single bed for around ten minutes. He told her to "shut up" and not make any noise. She said she was really frightened and kept quiet. The applicant then threatened her that he would be "after her" if she told anyone about what had happened, and left the room. Her evidence was that she put her clothes on and laid in the bed for about an hour, frightened that the applicant would return and try to have sex with her. She eventually fell asleep.
The victim woke the next day at around 11am. She went to a friend's house with the applicant's sister and confided in her best friend, telling her about what she alleged had occurred. Her best friend subsequently provided a statement to Police that corroborated what the victim had told her. She said that the victim had said that she was not going to tell anybody else because she was frightened of what the applicant might do.
The victim initially was afraid to tell her parents, fearing that she would not be believed and that she would get into trouble. However, before the offence was brought to the attention of Police, the applicant appears to have found out that the victim had told others about the incident. He telephoned the victim on 9 October 1989, abused her using derogatory terms, told her that she was a liar and said that he was going to "come down and knock [her] block off".
The victim's father overheard her saying loudly on the phone (to the applicant) "Don't swear to me", following which she disclosed to her parents what had occurred. She then was accompanied by her father to the local Police station where she disclosed the alleged offence to police.
The applicant was charged on 11 October 1989.
[25]
Applicant's denial of the allegation
At the time of being charged, the applicant admitted that he had telephoned the victim on 9 October 1989 and abused her.
However, he denied the allegation that he had engaged in sexual intercourse without the victim's consent and entered a plea of not guilty in the District Court.
[26]
Conviction and sentence
The applicant was convicted by a jury on 24 October 1990 and was sentenced to 15 months of periodic detention under the Detention of Prisoners Act 1981 (repealed).
[27]
Breach of periodic detention
Subsequently, in November 1992, the applicant was charged with 9 counts of breaching his periodic detention. He was convicted on 12 November 1992 in the Local Court and sentenced on each count to a fixed term of imprisonment of 4 months. His appeal against that conviction was not successful.
[28]
Applicant's defence arguments regarding the Disqualifying Offence
The applicant has maintained his innocence of the Disqualifying Offence. In his written submissions in these proceedings, he asserted that it is unusual for a young woman to be fearful about telling a parent about a traumatic sexual assault and that she feared she would not be believed.
He also contended that it was questionable that a young man could sustain an erection for 45 minutes and that the victim was not physically injured in circumstances where she was objecting to the alleged act. Further, he submitted that the victim's behaviour was unusual insofar as she was scared and frightened, but eventually fell asleep and arose the next morning at around 11am.
In his Personal Statement, the applicant questioned the competence of his legal representative in the criminal trial. He said that he had applied to the Aboriginal Legal Service for assistance to appeal his conviction but was told that they had no funding to launch an appeal. He stated that he had only received for the first time the victim's statement against him when he saw the evidence filed on behalf of the Children's Guardian in these proceedings. He also said that he saw, for the first time, the bail report which inaccurately described him. He asserted that this, together with the victim's implausible claims, were not appropriately addressed by his legal representative in the criminal trial. He also asserted that he now fully appreciates the disadvantage that he was subjected to and said that he finds this devastating.
The applicant's oral evidence to this Tribunal was that the whole experience had been traumatic and he does not have a good recollection of events. He also stated that he was a 19 year old but "still a child", and unaware of the judicial system and how it operated. His memory of the criminal trial was very poor, such that he could not remember what his legal representative said to the Court. He could also not remember what he said, except that he believed the allegation was a "fallacy", made up by "a young girl". He denied that he had sex with the victim, but admitted that he spoke to her and called her a "liar", in circumstances where she and her father arrived at his house and threatened to assault him. He denied that he had threatened the victim.
[29]
Applicant's account of his breach of periodic detention
In these proceedings, the applicant gave honest and straightforward responses to questioning about breaching his periodic detention. He admitted that he had been running from the detention at the time and gave a false name to Police to protect his real identity, and to avoid arrest and incarceration.
In his Personal Statement, the applicant acknowledged his error in failing to report for weekend detention, stating that he was:
"… young and stupidly put my personal interests and spirations ahead of doing the right thing by continuing to play football and work on weekends instead of reporting for weekend detention. This decision eventually caught up with me. When I was arrested and incarcerated for breaching the court order, my life spiralled completely out of control. I became self-destructive and suicidal, using alcohol and drugs to suppress my anger and disappointment at losing the future I had dreamed of. In the decade that followed I entered an abusive, alcohol-fuelled relationship with my first wife. I acknowledge that I made bad choices during this time and am ashamed of the path that I had chosen for my life during this period."
[30]
Tribunal's analysis and finding
Firstly, we accept that the applicant's assertions that he had not previously seen the victim's statement or the bail report, and that this would have been disturbing to read for the first time and in the context of his application before this Tribunal. We do not have the transcript of the criminal trial and therefore we do not have insight into the reasoning behind the applicant being sentenced to 15 months detention rather than a custodial sentence. However, as submitted on behalf of the respondent, the applicant did not provide persuasive material to this Tribunal about what could or should have been done differently to establish reasonable doubt about the allegation, and potentially avoid a conviction.
On the material before us, the victim's statement gave a clear and plain account of the alleged offence. Her description of the amount of time during which the applicant penetrated her was an estimate, and she qualified her statement by saying "It may not of (sic) been that long but I was frightened and it seemed like it went forever". In the circumstances where the victim was a 16 year old girl experiencing the threat of a sexual assault and then enduring the trauma of an unwelcome sexual act perpetrated by a person who was a member of a family she had known and presumably trusted for three years, it is entirely plausible that her perception was that the assault took so long.
We agree with the respondent's submissions that there was nothing so unusual in the victim's behaviour immediately following the sexual act or the following morning as to cast doubt on the safety of the conviction. In circumstances where she felt afraid and had been threatened with further physical violence if she told anyone about what had happened, it is not extraordinary that it took her an hour to fall asleep. It is also not so unusual or extraordinary that she then slept until 11am the following morning.
The best friend's statement about her conversation with the victim on the morning after the alleged assault is generally consistent with the victim's account to both her friend and eventually to the Police. It contains similar references to the sleeping arrangements, the light being turned on in the bedroom, the victim's rejection of the applicant's advances, the applicant's threat to rape the victim, another light being turned on in another room, and the victim's fear about telling anyone else about what had occurred. However, the witness' statement simply provides confirmation of what the victim told her had occurred.
Noting the victim's expressed fears about being believed and about what the applicant might do, we do not find the period of around two months, between the alleged sexual act and her disclosure to police, to be inordinately long.
Based on the applicant's conviction and the evidence before us, we accept that sexual intercourse occurred under threat of rape and that the victim did not consent to the sexual act. The act appears to have been opportunistic and not within the dynamics of a prior relationship between the applicant and the victim. We are obliged to take into account, when assessing the applicant's risk to the safety of children, that the victim was aged 16 and 4 months, and therefore a child within the meaning of the Act.
Against that, we have had regard to a number of factors in the applicant's favour to which we have given a substantial amount of weight. These include the significant passage of time since his conviction (34 years) and the fact that he has not been charged with a criminal offence of a sexual nature in that period of 34 years. Further, all subsequent offences for which he was convicted relate to adults and not to children. His breach of periodic detention was not a violent offence and the applicant has demonstrated insight into his self-destructive conduct at the time. We accept his statement of feeling ashamed about that time in his life as a genuine expression of remorse, underpinning his subsequent efforts to rehabilitate.
We also place a substantial amount of weight on the applicant's demonstrated reformation of his life for a lengthy period of 20 years and upon Dr O'Dea's expert opinion that the applicant has a relatively low risk of further sex offending and that his denial of the offence is not a predictor of further sex offending. Both the applicant's rehabilitation and the expert report are discussed in our assessment of the applicant's likelihood of re-offending.
[31]
The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)
As already noted, the Disqualifying Offence occurred 34 years ago.
Since then, the applicant's conduct has not been the subject of any further allegations, criminal charges or convictions for offences of a sexual nature and none of any further criminal charges or convictions relate to children.
A number of matters raised in the material before us concern aspects of the applicant's criminal record insofar as they may be considered to indicate an abusive disposition which may pose a risk to the safety of children. We now consider those matters which are generally arranged chronologically within categories headed "Conviction", "Police reports where no charges laid" and "Allegations where no charges laid" that did not result in formal charges against the applicant.
[32]
Convictions
Behave in offensive manner and common assault, May 1998
On 30 May 1998, the applicant was charged with behaving in an offensive manner in or near a public place, and common assault. He was convicted on 15 July 1998 for behaving in an offensive manner and fined $150.00. The charge of common assault, which the applicant could not remember anything about, was dismissed.
Common assault and destroy/damage property, September 1998
On 12 September 1998, the applicant was charged with common assault and "destroy or damage property." He was convicted on 13 January 1999 of both offences and received a fine of $500 and a three-year fine in respect of the assault, and a fine of $250 for property damage, plus Court costs.
Under cross-examination before this Tribunal, the applicant said he could not remember the circumstances that gave rise to the charges and conviction.
Resist Officer in execution of duty, assault Officer in execution of duty, common assault and intimidate Police Officer in execution of duty, January 2001
On 26 January 2001, the applicant was charged with a number of offences for which he was convicted in the Local Court on 14 September 2001, and received prison sentences. On appeal to the District Court, his sentences for "Resist Officer in execution of duty", "Assault Officer in execution of duty", "common assault" and "Intimidate Police Officer in execution of duty" were variously reduced to a community service order for 200 hours, and bonds for 12 months and three years to receive alcohol and drug treatment counselling.
Under cross-examination, the applicant said he had engaged words and punches with another patron. The applicant was arrested, and the arresting Police Officer asserted that the applicant had used a threatening motion to run his finger across his throat and threatened to kill the Police Officer. He said that to the best of his knowledge, he had not run his finger across his throat. His evidence was that he had been drinking in a pub to the point where he was "drunk, off [his] head", and was subsequently arrested.
The applicant did not deny that he had become extremely abusive, using offensive language, as set out in a written statement by Sergeant Threlfall. He could not recall what he said to Police but conceded it had been a heated conversation driven by his intoxication. He could not deny that he said the things alleged by Sergeant Threlfall, including "I know your name now [offensive language]. I'll find where you live and bash you" and "I'll find you [offensive language] and kill you. Wait till I get out of here, I'm gunna punch the [offensive language] out of you."
The applicant acknowledged he had been "power-drinking", and explained to the Tribunal that this meant he was drinking to knock himself out and distance himself from any reality whatsoever. He said he had begun to use marijuana and he also tried speed and Serepax in 1990-1991. The applicant's evidence was that in the decade that followed he entered into an abusive alcohol-fuelled relationship with his first wife which was accompanied by physical violence. He acknowledged that he had hit his wife at times, and he was not proud of his conduct. He said he sobered up and first started to leave the marriage in 2000/2001, and in 2003 he had distanced himself fully from the relationship.
[33]
Tribunal's analysis
We accept that in the period of years following the Disqualifying Offence until 2003 (which we regard as a period of deep turmoil), the applicant entered a tumultuous and dark period associated with alcohol and drug misuse in combination with a toxic, combative "on and off" relationship with his ex-wife. We also accept that, after 2003, the applicant made efforts to rehabilitate which included abandoning alcohol and drug abuse, and terminating the relationship with his ex-wife. He was awarded custody of his four children with his ex-wife by the Family Court of Australia in 2006 and reformed his life. In the period of more than 20 years since 2003, there have been no further criminal charges or convictions against the applicant associated with offensive or violent conduct.
Make a false declaration about his criminal history: August 2011
In connection with an application for employment with TAFE (within the Department of Education and Communities), the applicant was charged with making a false declaration on the grounds that he failed to declare his status as a "prohibited person" by virtue of his conviction on 26 October 1990 for sexual intercourse without consent.
The applicant said that a lot of influential people in his life had put him forward for the position because of the cultural work he was doing in the community, and he was "oblivious" to the significance of signing the application form and not declaring his conviction. His oral evidence was that he was very naïve and ignorant, and he thought he was ticking a box for the Department to do a criminal record check.
He was convicted and directed to enter into a good behaviour bond for 6 months pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999.
[34]
Tribunal's analysis
Making a false statement in an application for employment regarded as being child-related is not a violent offence. However, in the context of a person who now seeks a working with children check clearance, it is a relevant consideration.
We accept the applicant's evidence that he was ignorant of the law at the time and did not deliberately seek to make a false declaration, as his truthful account of what occurred.
We note the applicant's wife provided a written statement in support of his application for clearance in which she stated that she had encouraged him to apply for the TAFE position because of his cultural knowledge and his ability to be a positive role model for young Aboriginal people. Indeed, she accepted some responsibility for his breach, stating that she assisted him in completing the application for employment and thought that he was signing a consent form for checks to be done. She said she would never have encouraged another person to break the law and that it had been an "oversight and an honest mistake with terrible consequences" for her (now) husband.
We also accept that the applicant is remorseful about his error. We have, accordingly, placed only a very small amount of weight on this conviction and are confident that the applicant will not repeat his mistake in the future.
[35]
Police reports where no charges laid
Police report of argument and alleged assault, October 1996
On 27 October 1996, at the age of 26, the applicant was alleged to have become embroiled in an argument with a 32-year-old male with whom he was drinking alcohol, and hit him several times to the face, causing a small laceration and several bruises. The Police file note refers to the victim as being the brother of the applicant's ex-wife from whom the applicant had been separated for around 6 months at the time. The victim declined to give a statement and said he did not want any Police action against the applicant. The applicant's ex-wife told Police that she had argued with the applicant but she had not been assaulted.
The applicant was not interviewed and was not charged.
Police report of argument, October 1999
On 23 October 1999, at the age of 29, the applicant was alleged to have abused and sworn at a person with whom he was in an "on and off domestic relationship" for the previous 7 years and from whom he had recently separated. According to the Police report, the victim (assumed to have been the applicant's ex-wife) had refused the applicant's request for money to buy a travel ticket, believing that he wanted the money for gambling. The victim threatened to call the Police and the applicant left before they arrived.
The applicant appears to have not been interviewed, and was not charged.
Fighting in a pub, January 2001
Police were called to a tavern on 13 January 2001 where the applicant asserted that a patron wanted to fight him. The Police spoke with another male who was moderately intoxicated at the time and had a cut to his lip.
The cause of any argument between the parties was not identified and neither party wanted to make a complaint.
Allegation of verbal abuse, June 2003
The applicant was alleged to have been verbally abusive to his 55-year-old neighbour on two occasions in June 2003. He was alleged to have called her a "[offensive language] slag". The victim asserted she was fearful of the applicant as he was walking with a can of petrol in his hand.
The following day, on 28 June 2003, another Police report noted an altercation with possibly the same neighbour, and involving some children who were playing on the front lawn. It was alleged that the children were saying threatening things toward the neighbour.
According to notes made by the Department of Corrective Services in during the period from May 2023 to January 2024, the applicant had relationship problems with his ex-wife, there were numerous matters regarding Apprehended Violence Orders being applied for, his son had health problems requiring attention, and he experienced "a lot of conflict" with neighbours surrounding where the applicant was residing. The applicant was encouraged to accept a housing commission relocation if one became available. The DCS notes recorded that, ultimately, in January 2004, adjoining neighbours either side of the applicant's home had either moved out or been evicted and the applicant's relations with other neighbours had improved.
The applicant contended in submissions that his verbal abuse was in response to racially discriminatory taunts and threats he and his children had regularly received from the neighbour. In submissions, he said he was sorry for reacting in the manner that he did at the time and acknowledged he had responded inappropriately.
The Police reports note that the applicant was "spoken to", and there was no further investigation. No formal action was taken.
[36]
Tribunal's analysis
We make the same observations as previously made in these Reasons about the applicant's period of deep turmoil and his subsequent rehabilitation efforts.
[37]
Allegations where no charges laid
Allegation of assault of step-son, December 2008
According to a risk of harm report in DCJ records, the applicant was alleged to have physically assaulted his step-son on 22 December 2008. The step-son had started living with the applicant and his first wife in about 2006 when he was around 15 or 16 years of age. He had formerly been made a ward of the State in either 2004 or 2005, because he had difficulties in his relationship with his mother (the applicant's first wife) who had an alcohol problem. The applicant acknowledged that his step-son was difficult to care for and sometimes drank too much alcohol, but denied ever hitting him, including before giving up alcohol in about 2001.
The applicant insisted that the allegation concerning his step-son had nothing to do with him and that the incident involved another partner of his ex-wife who is named in a number of DCJ records. He objected to being put in association with his ex-wife's other partner. He contended that his ex-wife had made a number of malicious allegations against him, in an attempt to regain custody of their children. The applicant asserted that he was living in a different location at the time the allegation was made about his step-son and that his name appeared in a number of reports as being the ex-partner of his first wife.
[38]
Tribunal's analysis and finding
It is understood that the applicant's ex-wife made the allegation that he had assaulted the step-son. As already noted, the relationship was generally combative, fuelled by alcohol and drug-taking, and the applicant openly conceded that he had been aggressive during that period of his life, and he was not proud of it.
The allegation against the applicant is not independently corroborated and has not been tested. The applicant was not charged with any offence in relation to the allegation. The DCJ records refer to the applicant's first wife having an extensive history of drinking "at the expense of her children's emotional stability", and to physical abuse of several of the children by her other partner. In our assessment of the applicant's risk, we have not placed weight on this allegation. Also, we have had regard to the fact that the applicant was awarded custody of his four children and granted the care of his step-son which indicates he was considered by the Family Court of Australia and DCJ to be safe to care for his children and step-son, and to be protective towards them.
Allegations: Family arguments, March 2010 and January 2013
A Police report notes that on 16 March 2010 there was an alleged incident in which the applicant was engaged in an argument with a 19-year-old who was residing with him at the time. The victim alleged that the applicant was chasing him around whilst holding a memorial spear. The applicant acknowledged to Police that he was upset that the person was drunk, which led to the argument, but denied that he was chasing the victim around the house. The victim declined any Police action.
On 12 January 2013, Police attended a domestic dispute between the applicant and a 19-year-old female concerning her intention to no longer live at the applicant's house. The Police report noted that no offences were disclosed or detected, and no statement was obtained.
[39]
Tribunal's analysis and finding
We have not placed weight on these allegations. They were uncorroborated and untested. No charges were laid against the applicant. The reports appear to have been based on accounts most likely provided by the applicant's ex-wife. Having regard to the unstable and turbulent relationship between the parties, the reported history of their arguments over custody of their children, and various file notes disclosing his ex-wife's alcohol use and her physical abuse of the children, we have treated the reports with caution.
Allegation: Workplace issue January 2019
A complaint was made against the applicant during his employment in Aboriginal health services that he had made an inappropriate comment using Aboriginal language that refers to female genitalia in a team meeting on 14 January 2019. The applicant said that he used a word referring to a person's buttocks, and not genitalia, and that the word had different meanings for different communities.
An investigation ensued, which included taking formal witness statements. None of the witnesses could confirm that the applicant used an Aboriginal word that relates to female genitalia, and the allegation could not be substantiated.
[40]
Tribunal's analysis and finding
We have dismissed this allegation as having no relevance to our assessment of the applicant's risk towards the safety of children.
[41]
The age of the person at the time the offences or matters occurred: s 30(1)(c)
The applicant was 19 years of age at the time of the Disqualifying Offence.
[42]
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: s 30(1)(d)
The victim was aged 16 years and 4 months at the time of the Disqualifying Offence, and therefore a child for the purpose of the Act.
The victim was initially asleep when the applicant entered the bedroom where she was lying and rejected the applicant's advances. She made it clear that she did not consent to having sex and struggled to get away from the applicant. Under the threat of rape, and in circumstances where she had made it clear she did not consent to having sex, the applicant was aware, or ought to have been aware, of her vulnerability.
[43]
The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e)
The difference in age between the applicant and the victim was 3 years.
The applicant knew the victim through her friendship with his sister. The applicant and the victim had known each other for around 3 years since the victim often spent the night at the applicant's house. However, they were not in a relationship. The applicant was an adult and the victim was a child for the purposes of the Act.
[44]
Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f)
The victim was in the same class at high school as the applicant's sister and had often spent the night at the applicant's house. He therefore knew, or could reasonably have known, that she was 16.
[45]
The person's present age: s 30(1)(g)
The applicant is currently 53 years of age.
[46]
The seriousness of the person's criminal history and the conduct of the person since the matters occurred: s 30(1)(h)
The seriousness of the applicant's criminal history and his conduct since the Disqualifying Offence was discussed above in relation to ss 30(1)(a) and 30(1)(b) of the Act.
With the exception of his conviction in 2012 for applying for child-related employment contrary to s 33C(1) of the (now repealed) CCYP Act and making a false statement in connection with that application, the applicant's criminal history has otherwise been clear for a period of approximately 20 years.
[47]
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)(i)
There is no question that, if the applicant was to repeat the conduct which led to the Disqualifying Offence against a child, the child would suffer significant physical, emotional and psychological harm.
[48]
Expert evidence
In considering the likelihood of the applicant repeating that conduct, we are assisted by Dr O'Dea's expert opinion.
Noting that the victim was aged 16 and less than 5 years younger than the applicant and presumably post pubescent, Dr O'Dea was of the opinion that the single sex offence is not indicative of a paedophilic or hebephilic component to the applicant's sexuality. In his opinion, the Disqualifying Offence alone does not point to the applicant meeting the psychiatric diagnostic criteria for a paraphilic disorder, including a paedophilic disorder.
Dr O'Dea formed an opinion that, taking into account the applicant's demographic profile, conviction for one sex offence when he was 19 years of age and general offending history, the applicant fell in the group of individuals with a relatively low risk of further sex offending.
Noting the applicant's maintenance of his innocence, Dr O'Dea opined:
"Whilst I note that [the applicant] continues to deny having committed the index sex offence, denial, in and of itself, does not predict further sex offending."
[49]
The applicant's history of alcohol and drug use
In response to questioning about his drinking and drug-taking, the applicant said he was ordered by the Court in 2001 to abstain from drinking alcohol and entering licensed premises within the local area. His evidence was that he stopped drinking in 2001 and, to the best of knowledge, he has not drunk any alcohol since that time.
As to his drug-taking, he said he used marijuana sporadically after 2001, although to a lesser extent than previously. He made a distinction, stating that he stopped abusing drugs in 2001 but he still used marijuana once or twice a week. His evidence was that he does not take marijuana socially and he has recently commenced taking prescription marijuana under a doctor's direction.
The applicant's oral evidence was that he had undergone some relationship counselling which also assisted him to consider the impact of his use of alcohol and drugs upon the relationship. He said that he had not had psychiatric or psychological care and had not attended a rehabilitation service to assist him in staying free of alcohol and drugs, although he had engaged with a counsellor on the recommendation of the Department of Corrective Services in late 2003.
Dr O'Dea noted that substance use disorders, particularly long standing and significant substance use disorders, are often relapsing conditions. He thought that the applicant's history may point to him having a cannabis use disorder and an alcohol use disorder. However, Dr O'Dea stated that if the applicant remained abstinent from alcohol use for the last 20 years, his prognosis "may be considered favourable". He also stated that if the applicant were to remain compliant with a cannabis maintenance therapy program, then his prognosis may also be considered favourable.
Setting aside the applicant's history of alcohol and cannabis abuse, and based on the information provided to him, Dr O'Dea considered the applicant's history "would not be conclusive" of the applicant suffering a "major psychiatric illness".
[50]
Factors that influenced the applicant to rehabilitate
The applicant argued that whilst he had not engaged in drug and alcohol counselling through traditional means, a range of other factors had caused him to reform his life. They include cultural healing and being supported by a new loving partner and family, as well being on the receiving end of two acts of kindness from particular individuals.
Surprisingly, one of those individuals was Sergeant Threlfall (the arresting Police Officer in relation to the applicant's conviction for intimidating a Police Officer in execution of his duty) who counselled the applicant on giving up alcohol and on how to conduct himself. According to the applicant's oral testimony, Sergeant Threlfall had catalysed him into making significant changes to his life. The applicant's evidence of this constructive relationship is corroborated in the transcript of Local Court proceedings on 9 August 2002 (concerning the charge against the applicant of intimidating the arresting police officer) in which Sergeant Threlfall confirmed that he had quite a lot of contact with the applicant and had developed a "good relationship" with him.
The second individual whom the applicant credits with having a significant impact upon the course of his life was a barrister who gave him a lift home after he had been sentenced to a 3 year good behaviour bond. In a conversation between the two, the barrister pointed out that the applicant's history of violent crime was associated with a toxic relationship. As a result of that conversation, the applicant said he came into a realisation that, as a result of his circumstances, he was also being subjected to violence but that, as a male, he was not being heard. This appears to have been a crucial awakening for the applicant who said he resolved to change his criminal record as a direct result of how the barrister had treated him.
[51]
Has the applicant shown insight into the effect of his conduct?
The applicant has not received treatment from a counsellor or psychologist to assist him in reflecting upon the conduct that led to the Disqualifying Offence that may assist him in having insight into the effect of his conduct upon the victim or any other victim of such an offence. Dr O'Dea's opinion is that the applicant's continued denial of the offence is not a predictor of further sex offending. Equally, in our view, it would be unjust to expect the applicant to admit to the offence simply to seek to demonstrate remorse, reflection or insight for the purpose of obtaining a working with children check clearance. We take into account his awareness of how a young girl would fear such conduct. In his Personal Statement, the applicant said:
"Over 33 years ago in 1990, my life was turned upside down when I was accused and charged of sexual intercourse without consent at 19 years of age. Up until then, I had already survived a turbulent and volatile homelife, my parents separated when I was very young, and my mother was an alcoholic who regularly had people over at our house drinking and socialising. I spent many nights sleeping behind my sisters' bedroom door, to prevent drunken men from entering and harming the girls in any way. From the age of six, I was their protector…"
On the strength of the evidence before us, we are of the view that the likelihood of the applicant repeating any aspect of his previous criminal conduct is very low.
[52]
Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)
The Tribunal understands there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration.
[53]
Any information given by the applicant in, or in relation to, the application: s 30(1)(j)
In support of his application, the applicant filed a personal statement from his wife and five character references.
The statement from the applicant's stepdaughter attests to the applicant having been a consistent source of support, care and guidance in her life (from the age of 12 and she is now around 23 years of age). She said that the applicant had proven himself to be "an example of a positive, safe and trustworthy role model" in her life. She also attested to his rehabilitation, stating that he has overcome barriers and obstacles to transform himself into a "kind, compassionate, and empathetic individual he is today." Whilst this document only makes a broad and oblique reference to the applicant's "obstacles", we accept that the stepdaughter has intimate knowledge of the applicant's criminal background. We make an appropriate discount on the weight to be given to the statements because of the nature of her familial relationship with the applicant. However, we do not discount them entirely and some of her statements have relevance when considering the "reasonable person" and "public interest" tests.
The reference from Mr BW, a friend and former work colleague in a health related Aboriginal medical service and subsequently the Aboriginal Land Council, attested to the applicant's rise to the level of management and his leadership skills. Having known the applicant for 10 years, Mr BW described the applicant as demonstrating "fairness and honesty". Since this reference made no reference to the applicant's criminal history (and we acknowledge the applicant's expressed concerns about previous colleagues having such knowledge), we have only afforded a small amount of weight to this reference. We do not, however, discount it entirely since it affirms matters relevant to the "public interest" test.
Ms KD, another friend and former colleague of the applicant in connection with his work as an Aboriginal Health Manager, provided an undated personal reference. She has known the applicant for 10 years and attested to his commitment to advancing the rights and wellbeing of people, and that he earned the respect and admiration of those who worked alongside him. For the same reasons as noted above with respect to the reference from Mr BW, we have afforded a small amount of weight to Ms KD's comments. Her reference, however, also affirms matters relevant to the "public interest" test.
A reference from Ms BF refers to her experience of working as an Aboriginal Health Access Officer under the applicant's management from 2018 to 2020. Ms BF attested to the applicant's high standards of professional conduct. She described him as being "highly organised, passionate, friendly, approachable, disciplined" and "results oriented". Again, for the same reasons as noted with respect to the references from Mr BW and Ms KD, and noting the relatively short period of time that she worked for the applicant, we have given only a small amount of weight to Ms BF's reference.
Another reference (undated) provided by Ms JG who worked under the applicant's management from 2018 to 2021, attests to his leadership, strong work ethic and dedication. Additionally, she said that what set the applicant apart from others was his "impressive mentorship approach" as a manager. In her opinion, the applicant's unique perspective enriched the organisation and encouraged a more inclusive and culturally sensitive approach to their work. Whilst only a small amount of weight is placed on this reference, her comments validly support the "public interest" test.
We have already referred to the personal statement provided by the applicant's wife. We obviously discount the amount of weight to be given to the statement because of her intimate relationship with him. However, her statement is highly articulate, reflective of her education and acuity of mind. It also reflects an insightful assessment of a man who met her in circumstances where he was acting protectively towards his son, seeking to find alternative education opportunities for him, to overcome his disabilities. We have taken into account her statements that the applicant conducts himself in a manner that is respectful of women, and that she left her daughter in the applicant's care on many occasions. There is nothing in her statement that causes us to doubt its sincerity and we place a moderately appropriate amount of weight upon it since the applicant's wife witnessed first-hand the applicant's rehabilitation.
[54]
Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)
The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 36A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.
[55]
Any other matters that the Children's Guardian considers necessary: s 30(1)(k)
In supplementary submissions filed on behalf of the Children's Guardian following consideration of Dr O'Dea's report, the respondent no longer actively opposed the applicant's application and adopted a neutral position in relation to it. Submissions previously filed and advanced at the hearing on behalf of the respondent that we consider relevant to our decision-making have nonetheless been taken into account and we acknowledge the assistance provided by the respondent in that regard.
[56]
Whether the applicant is honest and truthful in his responses
In this application, the applicant is required to displace the presumption that he poses a risk to the safety of children. He has a statutory obligation under s 28(5) of the Act to fully disclose all relevant material to the Tribunal. His honesty is critical to displacing that threshold presumption and therefore to our decision-making.
The applicant was asked about his response dated 6 September 2023 to a letter from the Crown Solicitor's Office in connection with his application for a working with children check clearance. In response to a question as to whether he had been involved in any community or voluntary organisations including sporting groups or social clubs, he had written "No". However, in these proceedings, he gave oral evidence that he had coached football clubs on a volunteer basis in two particular locations, and also said that he had not completed any paperwork or been asked about his criminal history in connection with those engagements. We note that the time period for this volunteer coaching was not queried or clarified in cross-examination, although notes made by the Department of Corrective Services in November and December 2003 record that the applicant was at that time engaged in coaching juniors in cricket and football. It was suggested to the applicant in cross-examination that he had not been truthful in his response to the Crown Solicitor, having regard to a possible inconsistency with his oral evidence.
The applicant's explanation was that there was no definite period to which the question related in the Crown Solicitor's letter, and he had assumed it was a question about his involvement with coaching since 2012. He said that he may have mis-read the question, but strongly denied the suggestion that his answer to the Crown Solicitor's letter was a deliberate attempt to "cover up", and said that he had not put anything in his response to hide anything.
We observe that the relevant question (e) posed in the Crown Solicitor's letter concerning involvement in any community or voluntary organisations does not refer to a specific period of time, whereas two previous questions requested details in the "last 10 years". However, another question (f) was not time-specific and asked whether the applicant had "ever been" the subject of any complaints or disciplinary proceedings with any community or voluntary organisations. The applicant also answered "no" in his response to that question.
We found the applicant to be frank and open in disclosing matters to the Tribunal. For instance, he gave oral evidence about the context in which he first communicated with the Children's Guardian, to enquire about the process for applying for clearance and the likelihood of being granted clearance in light of his 1990 conviction. He said he was advised that he would have to apply, and then appeal his "disqualified person" status. He subsequently responded to the Crown Solicitor's request for details of various matters as discussed above. Having regard to the applicant's evidence that he had never completed any paperwork in relation to coaching in football clubs and his awareness that a review of his criminal record would disclose his most recent conviction in 2012 for making a false declaration, it is plausible that the applicant considered the question in the context of events since 2012 and we find that his answer "no" is not necessarily inconsistent with his oral evidence. We found the applicant to be a truthful witness, and forthcoming with information to disclose his thinking at the time of responding to the Crown Solicitor's letter.
Overall, the applicant's presentation of his case and his demeanour impressed the Tribunal members that he is a humble and deeply remorseful man who appreciated acts of kindness towards him that catalysed him into reforming himself. He was deeply embarrassed by his conviction for rape and his violent behaviour during a 10 year period. He impressed us as a man of deep compassion, such that he recognised unsolicited demonstrations of compassion towards himself and took steps in 2003 to turn his life around. In 2013, he started living with his (now) wife, and his criminal record since that time is entirely free of any convictions. That step, in our view, was a powerful protective factor in his overall reformation. In our assessment, the applicant is a different person from the person who was convicted of rape and had a criminal history of violence in a period of his life defined by a toxic relationship and alcohol misuse. Since 2003, he has not perpetuated those behaviours. He is motivated to make a contribution to the community, in particular the Indigenous community, because many members of that community have expressed confidence in him and have urged him to continue in roles relating to Aboriginal health. A working with children check clearance would enable him to do that.
[57]
Overall evaluation of risk
On the basis of the overall evidence before us, we find that the applicant has displaced the presumption in s 28(7) of the Act, and this Tribunal is positively satisfied that he does not pose a risk to the safety of children. In summary, our reasons are:
1. the significant passage of time (34 years) since the Disqualifying Offence and the applicant's continued denial of that offence;
2. that there are no other complaints, charges or convictions for offences of a sexual nature in the period of 34 years since the Disqualifying Offence;
3. that none of any further criminal charges or convictions against the applicant relate to children;
4. Dr O'Dea's expert opinion that the applicant falls into the group of individuals with a relatively low risk of further sex offending and that the applicant's continued denial of the Disqualifying Offence does not, of itself, predict further sex offending;
5. that the period from 1989 to 2003 in which the applicant's criminal record shows convictions for aggressive and abusive behaviour was associated with a toxic relationship with his ex-wife, accompanied by alcohol and drug abuse;
6. that the applicant has demonstrated sincere remorse for his criminal conduct after the Disqualifying Offence and genuine insight into the causes and effect of his conduct;
7. that the applicant's conduct during the past 20 years (with the exception of his conviction in 2012 for making a false declaration) outweighs his criminal record in the period from 1989 to 2003. He extricated himself from his turbulent relationship with his ex-wife and embarked on a program of rehabilitation which includes not drinking alcohol since 2001 and not abusing drugs since 2003 (and is considered by Dr O'Dea to have a favourable prognosis);
8. that the applicant has been living in a stable, loving relationship with his wife for more than a decade, and we consider this to be a powerful protective factor;
9. that the applicant is protective towards children, having been awarded custody of his own children by the Family Court of Australia and his step-son in 2006, and having also assisted in raising his step-daughter and now supports his daughter in raising a grandchild.
Accordingly, we are minded to make the enabling order requested.
[58]
Further considerations: "Reasonable person" and "public interest" tests
Before exercising the discretion to make an order requiring the Children's Guardian to grant the applicant a clearance, we are obliged to consider the evidence under s 30(1A) of the Act ("reasonable person" and "public interest" tests to be satisfied).
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"Reasonable person" test
Under s 30(1A)(a) of the Act, before making an order which has the effect of enabling a person to work with children in accordance with that Act, the Tribunal must consider and be satisfied that a reasonable person would permit their child to have direct, unsupervised contact with the applicant in the course of any child-related work.
A reasonable person would be concerned by the Disqualifying Offence since it was an offence of a sexual nature and the victim was vulnerable due to being intoxicated and asleep.
However, the Disqualifying Offence is counter-balanced by a number of factors including:
1. that in the past 34 years the applicant has not been the subject of any complaints, charges or convictions of a sexual nature or involving a child;
2. that the applicant is not known to have engaged in any concerning behaviour towards children; and
3. that the applicant was awarded custody of his four children by the Family Court of Australia, was granted the care of his step-son in 2006, assisted in raising his stepdaughter with his wife since 2013, and has not been the subject of any adverse records concerning their safety or wellbeing whilst in his care;
4. the applicant's reformation and demonstrated protective nature towards children.
On the evidence before us, we are satisfied under s 30(1A)(a) of the Act that a reasonable person would allow his or her child to have direct, unsupervised contact with the applicant while he is engaged in child-related work.
[60]
"Public interest" test
Under s 30(1A)(b) of the Act, before making an order which has the effect of enabling a person to work with children in accordance with that Act, the Tribunal must also consider whether it is in the public interest for the applicant to be given a clearance.
The applicant enjoys the confidence of a number of his previous colleagues and is highly regarded for his cultural knowledge, leadership skills and experience in Aboriginal communities.
We have taken into account the following statement in the reference provided by the applicant's stepdaughter:
"[The applicant's] deep connection to his Aboriginal heritage and culture is a defining aspect of his identity. He possesses a profound understanding of the importance of preserving and passing on these traditions to the next generation. It is for this reason that he would be an invaluable peer mentor for young people, particularly those from Aboriginal backgrounds. [The applicant's] ability to work within an environment where he can utilise his mentorship skills, to provide crucial guidance and support (sic) young people who are navigating their own challenges and seeking (sic) strengthen their connection to their culture, would be a significant benefit for the local indigenous community he is a part of."
We have also taken into account the statement by BW, one of the applicant's friends and former colleague in an Aboriginal medical service and subsequently an Aboriginal Land Council. In connection with the applicant's work with the Aboriginal Medical Service, BW wrote:
"For [the applicant], this was a difficult and challenging role where he was tasked with the responsibility of providing key funding and assist those services to develop their internal roles such as Aboriginal health workers who worked better to target local community health issues.
….
[The applicant] is a strong cultural man within his community, he is rich in the knowledge of Indigenous ways of knowing and being, to which, he selflessly shares with everyone including myself."
Statements by another referee, Ms KD, describe the applicant as a "distinguished" and "standout" leader in the Aboriginal community. She attests to his contribution to drive positive change for both Indigenous and non-Indigenous people:
"[The applicant's] passion and dedication as a strong advocate for Aboriginal people have been instrumental in driving positive change within the community. His comprehensive understanding of culture, traditions and values serve as a foundation for him as a community leader, allowing him to build meaningful connections with both Indigenous and non-Indigenous people alike."
Another referee, Ms JG, made the following statements which attest to the community benefits to be achieved because of the applicant's impressive cultural knowledge and genuine motivation to use it:
"[The applicant] consistently went above and beyond to ensure our team's collective success, and inspiring others with his strong work ethic and dedication.
[The applicant] actively led and participated in numerous initiatives aimed at empowering Aboriginal communities across [three identified] regions. His involvement in cultural events, workshops, educational and health programs was also instrumental in enhancing non-Aboriginal people's knowledge and cohesion with local Aboriginal communities.
…
[The applicant's] cultural knowledge spans various aspects such as history, Country, traditions, protocols, ceremonies, storytelling, artwork, and language. Every interaction with [the applicant] further solidifies his genuine connection to and commitment for preserving and sharing these invaluable cultural aspects."
Consistent with the decision in ZZ, we recognise the relevance and importance of the applicant's ongoing rehabilitation and his right to work in his chosen area of employment where he can apply the skills and experience acquired during his work (both professional and voluntarily) in the Aboriginal community sector. We take this into consideration since his desire to undertake work of that nature will also deliver a broader benefit for the community.
The Tribunal considers that in the absence of any risk to the safety of children, there are no clear public interest considerations to suggest that it is not in the public interest for the applicant to be granted a clearance.
We are thus satisfied under s 30(1A)(b)that it is in the public interest to make the enabling order and for the Children's Guardian to issue the applicant with a clearance.
[61]
ORDERS
Accordingly, we make the following orders:
1. Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of sexual intercourse without consent contrary to s 61D(1) (repealed) of the Crimes Act 1900 of which he was convicted on 24 October 1990.
2. Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal further orders the Children's Guardian to grant the applicant a clearance forthwith.
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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 August 2024
Parties
Applicant/Plaintiff:
FYK
Respondent/Defendant:
Children's Guardian
Legislation Cited (4)
Commission for Children and Young People Act 1998(NSW)