Office of the Children’s Guardian v CFW

1. [1]

   HIS HONOUR: By its amended summons filed in court on 15 September 2016, the Children’s Guardian seeks orders setting aside a decision of the New South Wales Civil and Administrative Tribunal on 20 April 2016: see CFW v Children’s Guardian [2016] NSWCATAD 76. An order that the matter be remitted to the Tribunal to be dealt with according to law is also sought. The defendant filed a submitting appearance.

2. [2]

   For the reasons that follow, I consider that each of these orders should be made.

Background

1. [3]

   In August 2005, the defendant was charged with the offence of possess child pornography under s 578B of the Crimes Act 1900. It was alleged that between 2002 and 2004 he had viewed and downloaded prohibited material from various websites. Approximately 400 files were recovered from the unallocated space within the defendant’s computer depicting young children apparently under the age of 16 engaged in sexual acts or in sexual poses.

2. [4]

   The defendant was not convicted. The magistrate dismissed the charge, holding that although his actions were “very suspicious”, the Crown could not rebut the assertion beyond reasonable doubt that the defendant may have inadvertently saved the images on his computer in the course of downloading adult pornography.

3. [5]

   Thereafter, in October 2014, the defendant applied for a Working with Children clearance under the Child Protection (Working with Children) Act 2012.

4. [6]

   The criminal proceedings against the defendant had triggered the risk assessment procedure under the Child Protection Act: see s 14 operating in conjunction with Schedule 1 cl 1(b) and Schedule 2 cl 1(y). The Children’s Guardian notified the defendant that it would be carrying out a risk assessment as required by the Act. In June 2015, the Children’s Guardian refused to grant the defendant a Working with Children clearance. In July 2015, the defendant applied to the Tribunal under section 27 of the Act for a review of that decision. On 6 August 2015, the Tribunal stayed the application of the barring order made by the Children’s Guardian and later set aside the decision of the Children’s Guardian and ordered it to grant the defendant a Working with Children clearance.

The legislative scheme

1. [7]

   The object of the Child Protection Act is to protect children by requiring persons engaged in child-related work to obtain a clearance, and by not permitting certain persons to engage in child-related work. The “paramount consideration” in the operation of the Act is the “safety, welfare and well-being of children and, in particular, protecting them from child abuse”.

2. [8]

   Section 18(2) of the Act provides as follows:

3. [9]

   Section 30(1) of the Act provides relevantly as follows:

4. [10]

   Section 63(1) of the Administrative Decisions Review Act 1997 is in these terms:

5. [11]

   Clause 17(1) of Schedule 3 to the Civil and Administrative Tribunal Act 2013 provides as follows:

Grounds of appeal

1. [12]

   The grounds upon which the Children’s Guardian appeals to this Court are as follows:

   1. (1)

      The Tribunal misconstrued or misapplied s 18(2) of the Child Protection (Working with Children) Act 2012 and thereby failed to discharge the statutory functions and duties conferred or imposed by Part 4 of that Act and s 63 of the Administrative Decisions Review Act 1997 in that it put aside matters it considered to be “open” in determining whether the defendant posed a risk to the safety of children.

   2. (2)

      Alternatively or further to ground (1), the Tribunal failed in the duty imposed by s 62(3) of the Civil and Administrative Tribunal Act 2013 to set out in its written statement of reasons the reasoning process that led it to the conclusions it made regarding the matters identified in ground (1).

   3. (3)

      In determining the statutory question posed by s 18(2) of the Act, the Tribunal failed to have regard to mandatory relevant considerations, being:

Ground 1

1. [13]

   The test in s 18(2) of the Act requires a decision maker to consider whether a person “poses a risk to the safety of children”. “Risk” in this context excludes “fanciful or theoretical risk” and instead requires a decision maker to determine “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”: Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children’s Guardian [2015] NSWSC 523 at [33].

2. [14]

   The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a “decisive impact” on the outcome of the application.

3. [15]

   The second proposition is that, even if no such “positive finding” can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is “groundless”. The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:

4. [16]

   Even if not positively satisfied that the acts occurred on the balance of probabilities, if “a lingering doubt or suspicion remains” then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41].

5. [17]

   A court or tribunal may make a finding of “real and appreciable risk” even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left “open”, the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.

The Tribunal’s decision

1. [18]

   The Tribunal in the present case purported to apply the approach set out in M v M and BKE at [98] as follows:

2. [19]

   If the Tribunal had in fact applied that approach it would have conformed to what was said in M v M. The Tribunal proceeded at [103] to [108] to say this:

3. [20]

   Although this analysis is arguably formulated in terms of the second proposition identified in M v M, the Tribunal does not expressly address what flowed from its conclusion that the question of the veracity of the allegations made against the defendant “remains open”. The Tribunal was obliged to consider questions of risk that may have been indicated by all of the facts, including the facts and circumstances surrounding the proceedings for the alleged offence that triggered the original assessment requirements, and any doubt or suspicion as to such matters. So much follows from the fact that the Tribunal was equally unable affirmatively to be satisfied that the relevant allegations were not true.

4. [21]

   Even though the Tribunal observed that the defendant was “a very poor witness”, it nevertheless considered that “there was no evidence that the applicant was untruthful or deliberately evasive in his answers”. On that basis, it concluded that the defendant had satisfied “the requirement of section 27(4) of the [Act]”, namely that he was required to disclose fully to the Tribunal any matters relevant to the application.

5. [22]

   The Tribunal expressed its conclusion in the following paragraphs:

6. [23]

   In my view the Tribunal has misapplied the test articulated in M v M in the context of s 18(2) of the Act. The inability to exclude the “possibility” of relevant unlawful or inappropriate conduct may, depending upon the particular facts and circumstances, indicate that the requisite degree of risk exists. Having determined that the veracity of the allegations made against the defendant “remain[ed] open”, the Tribunal should then have asked itself how that “open” conclusion, together with all of the other material before it, bore upon the question of risk.

7. [24]

   That was the point made by Buss JA in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 at [85], where his Honour said in the context of the equivalent Western Australian legislation:

8. [25]

   It is timely to recall how the High Court approached the issue in M v M. At 71-2, the High Court said this:

9. [26]

   At 74 the High Court identified the “critical passage” in the primary judge’s judgment in this way:

10. [27]

    What are arguably the critical passages in the High Court’s judgment are to be found at 77 as follows:

11. [28]

    The High Court concluded as follows at 78:

12. [29]

    The Tribunal in the present case cited a passage from the decision of Beech-Jones J in BKE at [33] as follows:

13. [30]

    There is nothing in the Tribunal’s reasons to indicate that it approached its task in the manner identified in these authorities. Its “open conclusion” suggests that there remained at least some degree of suspicion or doubt as to whether the defendant had engaged in criminal or “inappropriate conduct”. That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the defendant posed a risk to the safety of children. This is particularly so having regard to the Tribunal’s earlier observation at [97] that the Local Court found that the defendant’s actions were “very suspicious”, notably an observation that the Tribunal did not question.

14. [31]

    In my opinion, the Tribunal failed properly to have regard to or to assess those matters that it considered to be “open”. In doing so it misapplied the statutory test in s 18(2) of the Act, thereby failing to discharge its statutory functions and duties conferred or imposed by Part 4 of the Act and s 63 of the Administrative Decisions Review Act.

Materiality of the errors identified in ground 1

1. [32]

   The Tribunal’s errors were also of significance to the conclusions that it reached and could not be said to be immaterial. That follows from the fact that they bore directly upon the central question of risk posed in s 18 of the Act. Moreover, at least in respect of some crucial matters, the Tribunal appears to have erroneously foreclosed further analysis on the basis that the open finding was the end-point of any relevant inquiry.

2. [33]

   For example, it was common ground before the Tribunal that the defendant had at least downloaded and viewed “prohibited material”: see at [41], [43], [90] and [91] of the Tribunal’s reasons. The primary issue between the parties was the question of his intention to do so. A substantially similar, but slightly different, issue arose in the proceedings before the Local Court. The key question there was said by the magistrate not to be whether the applicant had viewed child pornography, observing that it “is not an offence to view a child pornography website” and that it “only becomes an offence when the material is saved, downloaded or stored on a computer”.

3. [34]

   The Tribunal mischaracterized the Local Court’s findings at [97] in these terms:

4. [35]

   The Local Court actually said that the asserted involvement of a third person was “difficult to accept” as it would also mean that the same “mysterious person” supplied the defendant’s correct credit card details. The Local Court dismissed the charge because the Crown could not rebut the assertion that the defendant may inadvertently have saved the images found on the unallocated space on his computer in the course of downloading adult pornography. There was uncontradicted expert evidence that supported that possibility.

5. [36]

   In her written submissions, counsel for the Children’s Guardian made specific mention of the different nature of the issues that confronted the Tribunal in comparison to those that arose in the Local Court. She emphasised that there were

6. [37]

   That was important because the defendant’s expert had accepted that if he was intentionally seeking out child pornography, it would raise “concerns” and would have “change[d] the situation somewhat” in terms of her determination of risk. Counsel for the Children’s Guardian specifically put her case on that basis.

7. [38]

   Clearly, such matters were central to the statutory question of risk confronting the Tribunal. Notwithstanding that fact, the Tribunal would appear to have put all such matters aside by reason of its inability to make any relevant “positive finding”.

8. [39]

   For those additional reasons, the Tribunal failed to discharge the statutory functions and duties conferred or imposed by Part 4 of the Act and section 63 of the Administrative Decisions Review Act.

Ground 2

1. [40]

   Section 62 of the Civil and Administrative Tribunal Act provides as follows:

2. [41]

   This ground of appeal is in essence an alternative formulation of ground 1. The plaintiff contended that there was simply no substantive engagement with the second proposition set forth in M v M: the Tribunal stated its conclusions without setting forth its reasoning process, leaving the Children’s Guardian in doubt about what legal tests were followed. Analysis of the relevance of the possibilities and suspicions referred to above with respect to the question of risk is said to be entirely lacking in the Tribunal’s reasons.

3. [42]

   I put aside for present purposes the question of whether or not this ground involves impermissibly construing the Tribunal’s decision “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272. In my opinion, having regard to my conclusions with respect to ground 1, it is unnecessary to consider this ground further.

Ground 3

1. [43]

   The failure to take into account mandatory relevant considerations is an error of law going to jurisdiction. As the High Court held in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 39, a decision maker’s failure to take into account a relevant consideration “is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action”.

2. [44]

   Whether a consideration is a mandatory relevant consideration will depend on the construction of the statute. Even if a relevant consideration is construed to be mandatory, it is possible that it “might be so insignificant that the failure to take it into account could not have materially affected the decision”: Peko-Wallsend at 40. The determination of whether a consideration is mandatory can be distinguished from the question of the weight to be given to a relevant consideration.

3. [45]

   The plaintiff nominated two specific matters that the Tribunal was bound, but failed, to have regard to:

4. [46]

   The Tribunal in fact acknowledged those matters at [103] and [78], [80] respectively. However, the Children’s Guardian contended that it approached its task on the basis that its “open finding” was the end-point of any consideration of those matters. A “mere perfunctory acknowledgement of the existence of [a] mandatory consideration” will not suffice where a decision maker is bound to take a particular matter into account: see for example Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSLWR 527; [2014] NSWCA 105 at [215] and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at 174-176.

5. [47]

   In order to make out this ground, the Children’s Guardian must also demonstrate that the Tribunal was bound to have regard to those matters as a question of statutory construction.

6. [48]

   The possibility that the defendant had engaged in the relevant criminal or inappropriate conduct or specifically that he had intentionally sought out child pornography were necessarily bound up in the mandatory consideration of the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. The evidence of the defendant’s expert was that if he was intentionally seeking out child pornography, it would have raised concerns and altered the situation in terms of her assessment of risk. That demonstrates the importance of undertaking the analysis identified by Buss JA in Grindrod (No 2): weighing all such reasonable suspicions in the process of determining what might happen in the future. The Tribunal instead put to one side its “open” finding and correlative suspicions and thereby failed to satisfy the statutory command that it “must consider” the matters identified in s 30(1).

7. [49]

   The Children’s Guardian submitted that the two matters identified above had to be considered by the Tribunal as an aspect of the requirement in s 30(1)(a) to consider “the seriousness of … any matters that caused a refusal of a clearance” (any assessment of “seriousness” necessarily requiring some weighing or assessment of those possibilities). They were equally required to be considered by the Tribunal as an aspect of the requirement in s 30(1) (k) to assess “any other matters that the Children’s Guardian considers necessary” (noting again that the question of the defendant’s intention to seek out child pornography formed part of the case of the Children’s Guardian, as set out in its written submissions).

8. [50]

   The Children’s Guardian submitted that, having regard to the materiality of those considerations, as required by Peko-Wallsend, each of the matters which the Tribunal should have considered, but failed to consider, bore directly upon the central question of risk to the safety of children: s 18(2) of the Act. It could not therefore be said, in those circumstances, that the failure was immaterial.

9. [51]

   I agree.

10. [52]

    The two matters referred to at [45] above are clearly related although the possibility that the defendant had intentionally sought out child pornography is arguably the more relevant articulation of the important inquiry for present purposes. The decision in the Local Court turned on questions related to the burden of proof. No such consideration attended the Tribunal’s statutory task. The Tribunal should in the circumstances have directly engaged with the evidence and submissions suggesting that the defendant’s computer came to contain the offending material inadvertently or unintentionally, despite the evidence suggesting that downloading material from the sites in question involved payment or the generally frail nature of that contention having regard to questions arguably attending the reliability of the defendant’s evidence.

11. [53]

    The question was necessarily at the heart of an assessment of whether or not the defendant posed a risk to the safety of children and the Tribunal’s satisfaction concerning it. It was a matter with which the Tribunal necessarily had directly to engage. These were not matters that were so insignificant that the failure to take them into account could not have materially affected the Tribunal’s decision.

Conclusion and orders

1. [54]

   In these circumstances I make the following orders:

   1. (1)

      Set aside the orders made by the New South Wales Civil and Administrative Tribunal on 20 April 2016 in CFW v Children’s Guardian [2016] NSWCATAD 76.

   2. (2)

      Remit the proceedings to the Tribunal, differently constituted, to be dealt with according to law.