CJT v Office of the Children’s Guardian

1. [1]

   HER HONOUR: By amended summons filed 8 January 2016, the plaintiff appeals the whole of the decision of the New South Wales Civil and Administrative Tribunal ("the Tribunal") in which the decision of the Children’s Guardian to refuse to grant the plaintiff a working with children check clearance (“a clearance”) under s 13 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Working with Children Act”) was affirmed.

2. [2]

   The appeal is brought pursuant to s 84 of the Civil and Administrative Tribunal Act 2013 (NSW) (the “NCAT Act”). The plaintiff has standing to bring the appeal but only as to a question of law.

3. [3]

   The errors of law relied upon by the plaintiff as invalidating the Tribunal’s decision include the following:

   1. (1)

      Error on the face of the record constituted by an erroneous construction of the scheme of the Working with Children Act, in particular the construction of ss 27 and 28 of the Act which are concerned with the assessment of future risk;

   2. (2)

      A failure to properly consider the documentary material available to the Children’s Guardian and what are said to be inconsistencies in that body of material and its doubtful provenance;

   3. (3)

      A failure to take into account relevant considerations, including testimonials attesting to his good character and statutory declarations by him that he is innocent of any criminal conduct;

   4. (4)

      The Tribunal’s failure to disclose the approach it would take to the assessment of future risk, inclusive of the approach it would take to the fact that the plaintiff had been charged with criminal offences that were not prosecuted, denied the plaintiff procedural fairness; and

   5. (5)

      Legal unreasonableness constituted by:

4. [4]

   The plaintiff seeks an order setting aside the Tribunal’s decision and, if the Court considers it appropriate, an order that the Children’s Guardian grant the plaintiff a working with children clearance.

5. [5]

   The plaintiff also seeks a declaration under s 75 of the Supreme Court Act 1970 (NSW) that the power of the Children’s Guardian under the Working with Children Act to refuse to grant a working with children clearance be limited to ensure that what the plaintiff claims was the wrongful exercise of the power to refuse to grant him a clearance is not repeated. Irrespective of whether the plaintiff has standing to seek a declaration in the terms pleaded in the summons (as to which I have considerable doubt), a declaration as to the meaning and operation of the Working with Children Act is not susceptible to declaratory relief under s 75.

6. [6]

   The plaintiff relied upon an affidavit affirmed on 26 November 2015 including annexures of 80 pages and a further affidavit affirmed by him on 8 March 2016 including annexures of 150 pages).

7. [7]

   On the hearing of the appeal I permitted the plaintiff’s wife to address the discursive written submissions prepared by her on the plaintiff’s behalf, and invited her to identify the precise basis upon which each of the grounds for legal error are said to be reflected in the course of the proceedings before the Tribunal, including the evidence tendered at the hearing, and in the Tribunal’s reasons for decision.

8. [8]

   I was not taken to any of the filed material (including the transcript of proceedings before the Tribunal or the reasons for decision) in support of either the second or third grounds of appeal. I have, however, taken into account that material, to the extent necessary, for the purposes of considering whether error has been made out in respect of those, or any of the grounds of appeal that are pressed.

9. [9]

   For the reasons that follow, I am satisfied that the Tribunal’s decision is devoid of legal error and that the amended summons should be dismissed.

Background to the Tribunal’s decision

1. [10]

   The Office of the Children's Guardian is the administrator of the statutory scheme under the Working with Children Act which operates to prohibit disqualified persons, or those without a working with children check clearance, from engaging in child-related work and by providing a scheme for the issue of a clearance to approved applicants. The safety, welfare and wellbeing of children and, in particular, protecting them from the risk of abuse, are the overriding objectives to which the operation of the Act is directed.

2. [11]

   Section 8(1) of the Working with Children Act prohibits a person from engaging in child-related work unless that person holds a clearance or has made an application for the issue of a clearance. A breach of s 8(1) is a criminal offence.

3. [12]

   On 13 May 2014, the plaintiff applied to the Children’s Guardian for a clearance under s 13 of the Act, it being his intention to work with children in a volunteer capacity in a community-based organisation affiliated with his church. A person wishing to obtain a clearance must make an application in the form approved by the Children's Guardian. Section 13(3) provides that the approved form must authorise the Children's Guardian to undertake a criminal record check in respect of the applicant. It must also make provision for the applicant to give consent for the Children’s Guardian to undertake any inquiry into additional matters prescribed in s 13(3).

4. [13]

   If, as a result of any checks conducted by the Children’s Guardian, a conviction for an offence specified in Schedule 2 of the Act is recorded, or an applicant is subject to current or pending proceedings for an offence specified in Schedule 2 to the Act, the Children's Guardian must refuse to issue a clearance.

5. [14]

   If any of the matters referred to in Schedule 1 of the Act apply to an applicant for a clearance, s 14 of the Act obliges the Children's Guardian to conduct a risk assessment in accordance with s 15(1) of the Act to determine whether the applicant poses a risk to the safety of children.

6. [15]

   At the date of filing his application for clearance the plaintiff had been charged with three offences contrary to ss 61I, 61J and 61N of the Crimes Act 1900 (NSW). His former partner was the complainant.

7. [16]

   On 17 July 2014, the plaintiff was advised by the Children’s Guardian that as those offences included a disqualifying record specified in Schedule 2 of the Act (being a pending charge for a disqualifying offence), his application for a clearance to work in any paid or voluntary child-related employment had been refused in accordance with s 18(1)(b) of the Working with Children Act.

8. [17]

   The plaintiff was committed for trial to the District Court on each of the three charges with the trial listed to commence on 13 November 2014. The matters did not ultimately proceed to trial, the complainant having advised the Crown that she was not willing to give evidence.

9. [18]

   Upon the formal entering of a nolle prosequi in respect of each of the charges, the plaintiff was no longer the subject of a disqualifying event under s 18(1)(b) of the Act, however, by operation of s 14 and Schedule 1(1)(b) of the Act, before issuing a clearance the Children’s Guardian remained obliged to conduct a risk assessment of the plaintiff in accordance with s 15 to determine whether he posed a risk to the safety of children.

10. [19]

    Section 15 provides:

11. [20]

    The plaintiff was advised by the Children’s Guardian that he would be subject to a risk assessment before his application for a clearance could finally be determined and that during the currency of that process he was subject to an interim bar, imposed under s 17 of the Act, the effect of which was to make it an offence for him to work in any child-related role, whether in a paid or voluntary capacity.

12. [21]

    On 18 December 2014, the plaintiff was advised by the Children’s Guardian that records had been identified which indicated the likelihood of him posing a risk to the safety of children. The criminal records from New South Wales and South Australia were identified in the correspondence. The South Australian records included the fact that in 2004, he had been charged with two counts of indecent assault and one count of unlawful sexual intercourse, in each case with a person under the age of 12 years, namely 11 years. Upon further enquiry, the Children’s Guardian was advised by police that the charges were not ultimately prosecuted, it being the opinion of the prosecuting authorities that there was no reasonable prospect of conviction as the child complainant was unable to recall the incidents in sufficient detail.

13. [22]

    The plaintiff liaised with the Office of the Children's Guardian from time to time between July 2014 and February 2015 concerning the progress of his application and the nature of the risk assessment that was being undertaken. It is unnecessary to refer to that material save as to note that the plaintiff’s attitude to the case officer who had carriage of the matter within the Office of the Children's Guardian became increasingly strident with repeated allegations of police corruption and repeated assertions of his innocence of any wrongdoing. That course of correspondence and the notes of telephone conversations with the plaintiff formed part of the material considered by the Children’s Guardian in its ultimate determination to refuse to issue a clearance. It was also considered by the Tribunal as part of the material relied upon by the Children’s Guardian as respondent to the proceedings. Some of that material was included in the appeal books. The balance of the material in the appeal book comprised the material gathered by the Children’s Guardian as part of the assessment process, including a number of incident reports concerning the plaintiff’s conduct vis a vis a number of children and young people, material which was also relied upon by the respondent before the Tribunal. It is not suggested that the plaintiff was unaware of this material.

14. [23]

    On 12 March 2015, the Children’s Guardian notified the plaintiff that it had completed the risk assessment and that it proposed to refuse his application for a clearance. He was invited to provide any additional information in support of his application before a final determination was made, including such references from independent professionals or employers as he may be able to provide, who might be able to address his capacity for unsupervised or supervised work with children. A copy of s 15 of the Act was enclosed with that correspondence, together with pro forma references.

15. [24]

    On 23 March 2015, the plaintiff was informed that the Children's Guardian had determined to refuse him a clearance, the risk assessor being satisfied that he posed a risk to the safety of children. Reference was made to the specific matters set out in s 15(4) of the Act that had been taken into account by the risk assessor, in particular:

16. [25]

    The plaintiff was also informed that the information he had provided was considered insufficient to displace the combined weight of the matters in s 15(4):

17. [26]

    He was also advised that although the interim bar issued under s 17 of the Working with Children Act had been revoked, were he to work with children in any capacity he would be liable to prosecution.

18. [27]

    On 2 April 2015, the plaintiff filed an application for review of the decision to refuse him a clearance as provided for in s 27 of the Working with Children Act.

19. [28]

    The matter was listed for hearing on 11 August 2015.

20. [29]

    In oral submissions before the Tribunal, which extended over the course of the hearing day, the plaintiff’s wife, who was granted leave to appear as the plaintiff’s agent pursuant to s 45(1)(b)(i) of the NCAT Act, identified two issues which she argued should determine the application for review in favour of a clearance being granted to the plaintiff. She submitted that:

    1. (1)

       The Children’s Guardian could not have been satisfied that the plaintiff posed a risk to children on the available evidence; and

    2. (2)

       International conventions and covenants operated so as to prohibit the Tribunal from making a positive finding that the conduct the subject of the criminal charges occurred and, that being the case, there was no evidence that the applicant posed a “real and appreciable” risk to the safety of children for the purposes of s 18(2) of the Act.

21. [30]

    In essence, she argued that neither the Children’s Guardian nor the Tribunal had legislative authority to make a finding as to the plaintiff posing a future risk (to the safety of children), or even make an assessment as to future risk, in circumstances where he had not been convicted of a relevant offence.

22. [31]

    At the conclusion of the hearing, the plaintiff was granted leave to file further submissions of ten pages or less by 21 August 2015. On 21 August 2015, he filed a 44-page document.

23. [32]

    On 24 November 2015, the Tribunal published its reasons for decision.

The Tribunal’s decision

1. [33]

   The Tribunal member correctly identified the issue for determination as an inquiry, by way of a merits review, as to whether, having regard to the material tendered in the proceedings, the correct and preferable decision is that the applicant be granted a working with children check clearance, and correctly identified s 27(1) of the Working with Children Act as the source of the Tribunal’s jurisdiction.

2. [34]

   The Tribunal member also correctly identified the nature of the jurisdiction exercised by the Tribunal under s 27 of the Act as protective and not punitive and, since the applicant was not a disqualified person under s 28 of the Act but a person who had been assessed as posing a risk to children, neither party bore an onus of proof, that is, the Children’s Guardian, as respondent to the review application, was not obliged to prove the plaintiff did pose a risk to the safety of children and the plaintiff was not obliged to prove he did not. The submission advanced in the written submissions that the Tribunal member either did not appreciate the fact that the plaintiff bore no onus of proof, or that he imposed an evidential or legal onus on the plaintiff in his assessment of risk, is rejected.

3. [35]

   Accordingly, the issue for determination in the Tribunal’s statutory review of the decision of the Children’s Guardian to refuse a working with children clearance was whether, having regard to the matters contained in s 30(1) of the Act, the Tribunal was satisfied that the applicant posed a risk to the safety of children, with that issue to be determined on the balance of probabilities.

4. [36]

   The Tribunal member correctly identified the factors in s 30(1) of the Act he was obliged to consider in determining that question. Section 30 was set out in full in the reasons for decision as follows:

5. [37]

   I note that the matters specified in s 30(1)(a)-(k) mirror, in large part, the matters that were considered by the Children’s Guardian under s 15 of the Act, save for the fact that where the Tribunal was obliged to consider all the matters in s 30(1), the matters listed in s 15(1) are not mandatory considerations.

6. [38]

   The Tribunal member applied the meaning of the word “risk” in the context of the issue for determination consistently with a number of the Tribunal’s decisions, and decisions of this Court, in which the observations of Young CJ (in equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 have been applied. At [42], his Honour said:

7. [39]

   His Honour’s observations as to the meaning of the word “risk”, as it appeared in the former Child Protection (Prohibited Employment) Act 1998 (NSW) has been consistently applied in construing the concept of a “risk to the safety of children” for the purposes of ss 27 and 28 of the Working with Children Act. In BKE v Office of Children’s Guardian and Anor [2015] NSWSC 523, Beech-Jones J had occasion to construe the meaning of risk in the context of s 28, a section which is concerned with applicants for a clearance who are disqualified or ineligible persons. At [26], his Honour applied the analysis of Young CJ (in equity) in V, and held that the test in the Working with Children Act is whether the applicant poses a risk to the safety of children, a risk which must be assessed as “real and appreciable”.

The first ground of appeal

1. [40]

   The plaintiff’s first ground of appeal contends error in the Tribunal member’s construction of the Working with Children Act, in particular, s 27 of the Act. It was not submitted that there was error in his application of the meaning of risk as articulated in V per se. The plaintiff appears to accept that “risk” to the safety of children means the same in s 27 as it has been held to apply to s 28, that is, a real and appreciable risk. His submission is that the Tribunal member has failed to give emphasis and meaning to what is said to be a quantitative measure of risk in V, being a risk “greater than the risk of any adult preying on a child”.

2. [41]

   It was further submitted that the plaintiff was not a candidate for a risk assessment under the Act at all because he has not been convicted of a criminal offence and, in those circumstances, the Tribunal member and the Children’s Guardian have exceeded their legislative authority in undertaking a risk assessment of him at all. In addition, it was submitted on the plaintiff’s behalf that, because he has attested to his innocence of any criminal wrongdoing and has attested to his abhorrence of all and any criminal acts involving sexual misconduct in his statutory declaration relied upon in support of his application, he should be believed, thereby eschewing any proper basis for a risk assessment to be undertaken. Finally, it was submitted that the failure of the Tribunal member (and the Children’s Guardian) to undertake a qualitative or quantitative assessment of risk referable to a replicable methodology such as might admit of an objectively verifiable assessment of risk also constitutes error.

3. [42]

   A further feature of the plaintiff’s case before the Tribunal was to take issue with the approach of Beech-Jones J in BKE, where his Honour adopted and applied the reasoning in M v M [1988] HCA 68; 166 CLR 59 to the approach to fact finding which is inherent in the process of undertaking a risk assessment. The Tribunal member summarised that aspect of the plaintiff’s submissions as follows:

4. [43]

   I am satisfied that the Tribunal member’s approach to the risk assessment he was obliged to undertake is in accordance with authority and is otherwise devoid of error in approach or application. The submission that an assessment of risk for the purposes of s 18(2) of the Working with Children Act dictates that some actuarial assessment of future risk needed to be undertaken by the Tribunal member (or the Children’ Guardian) is to entirely misunderstand both the statutory scheme in the Act and the jurisprudence that has developed as the State and Federal legislatures have responded to the prevalence of child abuse in a wide variety of legislative contexts.

5. [44]

   The assessment of the risk an applicant for a clearance might pose to the safety of children, when that person has not been convicted of a scheduled offence, calls for an evaluative judgment based on all the information available to the decision-maker. It is clear from the reasons for decision that the Tribunal exercised its own evaluative judgment in the assessment of risk on the materials available to it (including, the plaintiff’s statutory declaration) and that the correct legal tests were applied by the Tribunal member in doing so. The Tribunal member’s reasons for ultimately concluding that the plaintiff posed a risk to the safety of children were also clearly articulated. I am also satisfied that the Tribunal member was at pains to ensure the plaintiff understood the question for determination and the fact that the plaintiff was not a person with a criminal record would not be determinative of that question. The ground of appeal which complains he was denied procedural fairness is also rejected.

The course of the hearing and the Tribunal member’s assessment of risk

1. [45]

   In his reasons for decision, the Tribunal member summarised the course of the hearing and the evidence which was tendered. He noted that the evidence tendered by the Children’s Guardian, as respondent, comprised the compendious body of material upon which the Children’s Guardian had relied in refusing to issue a clearance. The Tribunal member summarised that material by noting:

2. [46]

   The Tribunal member also noted that the plaintiff tendered the statutory declaration referred to above in which he attested to his innocence in respect of all of the allegations of criminal conduct. The Tribunal member also noted:

3. [47]

   As the Tribunal member made clear in his reasons for decision, the evidence tendered at the hearing by both parties was considered by him referable to each of the mandatory considerations in s 30(1) of the Act. He dealt with each of those considerations in turn.

(a) The seriousness of the matters that caused a refusal of a clearance or imposition of an interim bar.

1. [48]

   The Tribunal member referred to the charges laid against the plaintiff in South Australia in 2004, and those laid in New South Wales in 2007. In respect of the 2004 charges, he noted they related to allegations that the plaintiff had kissed the child on the mouth, inserted his tongue into the mouth and digitally penetrated her vagina in her father’s caravan, after the father had left his daughter with the plaintiff for approximately 20 minutes. The plaintiff was a friend of the child’s father. He was a single parent with whom the plaintiff had developed a relationship. The Tribunal member noted that evidence from the child’s father was to the effect that the plaintiff had befriended him, offering advice on parenting and claiming he had experience working with welfare agencies.

2. [49]

   The allegations made by the plaintiff’s former partner included his physical restraint of her and having sexual intercourse with her against her consent in the course of which she sustained soft tissue injuries, abrasions, bruising and external injuries to her genitals.

3. [50]

   The Tribunal member correctly noted that neither suite of criminal charges resulted in criminal convictions, the complainant in each case having either indicated to the prosecuting authorities an unwillingness to give evidence or being assessed as an unreliable historian.

(b) The period of time since those matters occurred and the conduct of the person since they occurred.

1. [51]

   The Tribunal member noted that in the intervening period of ten years or so between the two suites of criminal charges, the plaintiff had come to adverse attention when police received a complaint that he was loitering around a primary school in South Australia. In 2012, further allegations involving the plaintiff and a 16 year old female were reflected in case notes and a DVD supplied by South Australian police. The Tribunal member noted that upon viewing the DVD (which contained a police interview with the plaintiff) the plaintiff was given an official warning under South Australian legislation.

(c) The age of the person at the time the matters occurred.

1. [52]

   The Tribunal member noted that the applicant, who was born in 1967, was approximately 36 years of age at the time of being charged in South Australia and 46 years of age when he was charged with the offences in New South Wales.

(d) The age of each victim and any matters relating to the vulnerability of the victim.

1. [53]

   The Tribunal member noted that the child complainant was approximately 11 years of age and the adult complainant was 47 years of age. In respect of that complainant, the Tribunal member noted that she was diagnosed with schizophrenia and, with that knowledge, the plaintiff had encouraged her to consume recreational drugs despite knowing of her psychological frailty.

(g) The person’s present age.

1. [54]

   No additional observations were made under these subsections of s 30(1), the Tribunal member having already noted the difference in ages between the plaintiff and the child and the adult complainants.

(h) The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred.

1. [55]

   The Tribunal member acknowledged that the plaintiff did not have a criminal record. He also noted that, so far as the evidence before him was concerned, there was little evidence from the plaintiff as to his social or work-based activities, save for his involvement in a Christian church group that conducts street preaching and his wish to participate in that group. In the result, the Tribunal member observed that he had no detailed information addressing the plaintiff’s involvement in any other community-based or work-related environment.

(i) The likelihood of any repetition by the person of the conduct and the impact on children of any such repetition.

1. [56]

   The Tribunal member considered that it was difficult to address the likelihood of any repetition of the offending the subject of complaints in 2004 and 2013, or its impact on children, in the absence of finding that the conduct relied upon by the Children’s Guardian as grounding a risk to the safety of children in fact occurred, as to which he made a finding in the following terms:

2. [57]

   The Tribunal member did note, however, that the incidents where the plaintiff was alleged to have misconducted himself, or where there was a risk where he might misconduct himself, including towards children, involved what he described as “a potential pattern of conduct involving sex based allegations relating to vulnerable victims with whom there was an established relationship of trust”. He went on to observe that were that pattern of behaviour to be repeated in the future, the impact on any victim would be significant.

(j) Any information given by the applicant in, or in relation to, the application.

1. [58]

   Given the plaintiff’s complaint that he was denied procedural fairness by the Tribunal as one of the errors of law warranting the intervention of this Court, it is appropriate to set out the Tribunal member’s consideration of the information provided by the plaintiff in full:

2. [59]

   At [95] the Tribunal observed that:

(k) Any other matters that the Children’s Guardian considers necessary.

1. [60]

   I also set out in full the additional matters the Tribunal member took into account:

The Tribunal member’s findings

1. [61]

   As I have already noted, in his reasons for decision, the Tribunal member made it clear that he was unable to make a positive finding as to whether the criminal allegations the subject of the offences charged in South Australia and New South Wales had in fact occurred, applying the civil standard to that question.

2. [62]

   He went on to say, however, that the material before him, including what he considered to be “the pattern of the allegations and the similar theme running through the allegations”, remained relevant to the risk assessment in which he was engaged.

3. [63]

   The Tribunal member also referred to having some doubt as to the truthfulness of some aspects of the material upon which the applicant relied, in particular, his assertion that he had never been the subject of a warning from South Australian police when the materials which the respondent had relied upon included a DVD which contained an interview of the applicant with South Australian police at his home.

4. [64]

   After expressing his satisfaction that the plaintiff had been afforded the requisite level of procedural fairness and again emphasising that he had repeatedly reminded the plaintiff (and his wife as agent) of the Tribunal’s role and the plaintiff’s option, if he wished to exercise it, to respond to the case put against him, the Tribunal member found that the evidence and other materials he had taken into account under s 30(1) of the Act satisfied him that the plaintiff posed a “real and appreciable risk” to the safety of children, or as he also expressed it in another part of his reasons, “the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children”.

5. [65]

   In the result, and despite the absence of a positive finding that the plaintiff had committed offences charged under New South Wales and South Australian Crimes Acts, the Tribunal member was satisfied there was no obviation of the existence of risk, particularly given that the statutory context in which risk was to be assessed identified the welfare of the child as the paramount consideration.

Consideration of the remaining grounds of appeal

1. [66]

   The Tribunal member’s careful and detailed summation and analysis of the documentary material relied upon by the Children’s Guardian as respondent, and the limited weight afforded the plaintiff’s statutory declaration and other materials upon which he relied, satisfies me that the errors contended for the subject of Grounds 2 and 3 are not made out.

2. [67]

   Given the plaintiff’s full appreciation of the approach of the Children’s Guardian to the assessment of risk in its statutory context, and being fully informed of the material before the Tribunal, including the realistic possibility that the decision of the Children’s Guardian would be affirmed, I am well satisfied the plaintiff was not only provided with every reasonable opportunity to be heard, but was on notice that his past conduct would be agitated in the process of risk assessment, including conduct that had attracted adverse notice, even if criminal charges were not laid, or if laid, were not proven.

3. [68]

   I would reject the fourth ground of appeal.

4. [69]

   The fifth ground of appeal alleges legal unreasonableness, said to amount to jurisdictional error. Quite apart from the need to ensure that the test of legal unreasonableness is confined it its application in the way discussed by Hayne, Kiefel and Bell JJ at [66]-[76] in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, having already concluded that the Tribunal’s approach to the assessment of risk was free of error, and that the Tribunal member’s path of reasoning in the assessment of risk is patent and supported by reasoned analysis of all the material before him, Ground 5 is also rejected

Orders:

1. [70]

   Accordingly, I make the following orders:

   1. (1)

      The amended summons is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.