BYR v Children's Guardian [2013] NSWADT 310

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: BYR v Children's Guardian [2013] NSWADT 310 Hearing dates: 17 December 2013 Decision date: 17 December 2013 Jurisdiction: Community Services Division Before: S Higgins, Deputy President Decision: 1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of rape, of which he was convicted on 25 March 1971. 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant with a working with children clearance. Catchwords: Working with children clearance - disqualified person - presumed to be a risk to children - whether applicant has proven to the contrary Legislation Cited: Administrative Decisions Tribunal Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Commission for Children and Young People 1998 Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949 IH v Commission for Children and Young People [2009] NSWADT 202 L v Commission for Children and Young People & anor [2008] NSWIRComm 195 R v Commission for Children and Young People [2002] NSWIRComm 101 RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 RV v Commission for Children and Young People [2007] NSWADT 299 Category: Principal judgment Parties: BYR (Applicant) Children's Guardian (Respondent) Representation: Counsel D Ward (Respondent) BYR (Applicant in person) Crown Solicitor (Respondent) File Number(s): 134046 Publication restriction: S 126 of the Administrative Decisions Tribunal Act 1997 applies

reasons for decision

Introduction 1The applicant, BYR, made an application under s 28 of the Child Protection (Working with Children) Act 2012 (the Act), for an enabling order that he not be treated as a 'disqualified person' for the purposes of that Act and be granted a clearance to work with children. The applicant is a 'disqualified person' by reason of his conviction, in March 1971, of rape: see subs 18(1) of the Act. At the time, the applicant was 21 years of age. 2Today, the applicant is a minister of religion in his local congregation. With the coming into force of the Act, the applicant was required to obtain a working with children clearance check if he wished to continue with this work: see subs 6(2) of the Act. 3As required, the applicant made an application, to the Children's Guardian, for such a clearance under s 13 of the Act. 4On 27 September 2013, the Children's Guardian determined not to grant the applicant with a clearance as a result of his 1971 conviction: see subs 18(1)(a) of the Act. 5On 28 October 2013, the applicant, as he was entitled to do, made an application, under s 28 of the Act, to the Tribunal, for an enabling order and a working with children clearance check. 6BYR's application was heard, before me, on 17 December 2013. 7The respondent, the Children's Guardian, did not oppose the applicant's application for an enabling order. 8In support of his application the applicant relied on a statement he made on 18 November 2013 and two references. One reference was from the applicant's congregation and the other reference was from his employer. 9The respondent tendered into evidence a bundle of documents, which included a copy of the applicant's criminal record, a copy of the decision of the Court of Criminal Appeal in regard to the applicant's appeal and that of one of his co-accused and copies of responses to enquiries made by the respondent. 10After considering the relevant legislative provisions in the Act, the material filed and the submissions of the parties, I made the orders sought. 11I also agreed to publish detailed reasons for decision, in light of this being only the second application to be determined under the Act.

Legislation 12The Child Protection (Working with Children) Act 2012 (Act), is a new legislative scheme regulating those persons who can engage in, or continue to engage in, child-related work. The Act came into force on 15 June 2013. On coming into force, the Act repealed the previous legislative scheme in Part 7 of the Commission for Children and Young People Act 1998: see cl 6 of Schedule 4.2 of the Act. 13Part 1 of the Act contains provisions in relation to the commencement of the Act, its objects and definitions of terms used within the Act. 14The objects of the Act are set out in s 3 as follows: 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. 15Section 4 of the Act provides that the 'safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act. 16The word 'children' is defined in subs 5(1) to mean persons under the age of 18 years. Consequently the word 'child' has the same meaning. 17Part 2 of the Act deals with restrictions on child-related work. The relevant restrictions are those contained in ss 6, 8 and 9 within this Part. 18Subsection 6(1) of the Act provides that a person is engaged in 'child-related work' for the purpose of the Act if: (a) the person is engaged in work referred to in subs 6(2) that involves direct contact by the person with children, or (b) the person is engaged in a child-related role referred to in subs 6(3). 19The term 'direct contact' with children is defined in subs 6(4) to mean (a) physical contact, or (b) face to face contact. 20Subsection 6(2) provides that the work referred to for the purpose of subs 6(1)(a) is work for, or in connection with any of the activities as listed in para 6(2)(a) to (m), and which are declared by the regulations to be child-related work. Included in the activities in subs 6(2), is 'religious services' by any religious organisation: see para 6(2)(j). 21Part 2 of the Child Protection (Working with Children) Regulation 2013 (the Regulations) declares those aspects of the activities listed in para 6(2)(a) to (m) of the Act which are child-related work. 22In regard to 'religious services', cl 13 provides: 13 Religious services Work for a religious organisation where children form part of the congregation or organisation is child-related work, if the work is carried out: (a) as a minister, priest, rabbi, mufti or other like religious leader or spiritual officer of the organisation, or (b) in any other role in the organisation involving activities primarily related to children, including youth groups, youth camps, teaching children and child care. 23There is no dispute that the applicant's work as a minister falls is child- related work falling within the above description. 24Subsection 8(1) of the Act prohibits a person from engaging in child-related work, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children's Guardian for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 25Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child-related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance. 26Part 3 of the Act deals with working with children clearances. That Part is divided into 3 Divisions as follows: - Division 1, sets out the classes of clearance. There are essentially two classes of clearance, a volunteer clearance authorising a person to engage in unpaid child-related work and a non-volunteer clearance authorising a person to engage in paid and unpaid child-related work: see s 12 of the Act; - Division 2, deals with applications for clearances: see s 13 of the Act. Such applications are made to the Children's Guardian; - Division 3, deals with risk assessment of persons who have made an application for a clearance or who are holders of a clearance. Section 15 makes provision for the Children's Guardian to conduct such risk assessment and if appropriate, while making such an assessment, the Children's Guardian has the power to impose an interim bar on the person the subject of a risk assessment, pending determination of the clearance application; - Division 4, deals with determinations, by the Children's Guardian, of applications for clearance. I have dealt with the provisions in this part in more detail below; - Division 5, deals with the duration of a clearance (5 years) and the circumstances in which a clearance can be cancelled: see ss 22 to 24; - Division 6, establishes the working with children register. 27Subsection 18(1), in Division 4 of Part 3, provides that the Children's Guardian must not grant a working with children check clearance to a 'disqualified person'. That subs is in the following terms: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. 28The word 'conviction' is defined in subs 5(1) to include 'a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to conviction.' 29Para 1(1)(f) of Schedule 2 of the Act specifies the 'common law offence of rape or attempted rape'. There is no dispute that the offence, of which the applicant was convicted, in 1971, falls within this description. 30Part 4 of the Act deals with reviews and appeals. 31Section 26 provides that where (a) a person has been convicted of the murder of a child, or (b) the person's application for a clearance has been refused wholly or partly on the grounds that the person has been charged with an offence, which has not been finally determined, cannot make an application under this Part. 32Section 27 makes provision for administrative review, by the Tribunal, of decisions of the Children's Guardian to (a) refuse a working with children check clearance, (b) to cancel a person's clearance and (c) impose an interim bar on a person's clearance. As I have mentioned, where a person is a 'disqualified person,' para 18(1)(a) of the Act operates as a mandatory refusal. Accordingly, on administrative review, the same mandatory refusal would apply. 33Section 28 deals with 'disqualified persons'. That section is in the following terms: 28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) (Repealed). 34Section 30 sets out how an application under s 27 is to be determined by the Tribunal. It is in the following terms: 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 total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal. (3) (Repealed).

Consideration 35As indicated in the objects of the Act and s 4, the Tribunal's jurisdiction under s 28 remains protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. That is, the object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children. The Tribunal's review jurisdiction, under s 27, is similarly protective in nature. 36In this application, the issue for determination is whether, having regard to the matters in subs 30(1) of the Act and the relevant facts, the applicant has established (i.e. proven on the balance of probabilities) that he does not pose a risk to children. 37As I have mentioned, subs 28(7) of the Act presumes that the applicant does pose a risk to children. 38The 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]. His Honour's consideration was made in the context of subs 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], His Honour said: 42 ...[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". ... 39These remarks of His Honour have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in subs 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15], L v Commission for Children and Young People & anor [2008] NSWIRComm 195 at [31], FZ (supra) at [60]. 40In my view, the remarks of His Honour equally apply to the meaning of 'risk' as it appears in s 28 of the Act. However, in light of subs 28(8) of the Act, which provides that an enabling order cannot be made subject to conditions, the qualifying remarks of His Honour, in V, at [43] and [44], are no longer applicable. 41In regard to the matters the Tribunal is required to consider, as set out in subs 30(1), I find as follows: (a) Seriousness of the Schedule 2 offence - the applicant accepts that the offence was very serious. The events leading to the charge occurred, one evening, in June 1970. They occurred at a private home, across the road from where the applicant lived at that time. The private home was that of friends or acquaintances of the applicant. The victim was brought to the home by her boyfriend, who had collected her from her home earlier that evening. The victim, her boyfriend, the applicant and friends or acquaintances of the applicant all met up at a nearby hotel. After leaving the hotel, they all drove to the private home. The victim's boyfriend left, leaving her in the home of the applicant's friends and acquaintances. During that evening the applicant had non-consensual intercourse with the victim. This was after one of the applicant's friends or acquaintance had non-consensual intercourse with the victim and another had attempted to do so. The applicant was convicted of the offence of rape and was sentenced to nine years imprisonment, with a non-parole period of four years and six months. The applicant appealed his conviction and sentence. The Court of Criminal Appeal dismissed his appeal on conviction, but reduced his sentence to imprisonment for six years, with a non-parole period of three years. In reducing the sentence the Court said: '... [True] enough, he participated in the scheme to lure the girl to [X's] home under the pretence of driving her home and there, being a leading party, was a party to her being raped by others as well as himself, and also notwithstanding that he made an earlier unsuccessful attempt and was warned by her that she was a virgin, but there are features on the other side of the scale. In addition to his youth - he is twenty years of age - there was no physical injury to this girl nor were there other acts of gross indecency by him which often characterise pack rapes, or violence or threats of violence or even of torn or destroyed clothing. ... [the] police say that he is not an associate of criminals or other persons of disrepute, he was in employment at the time of his arrest and had a good antecedent work record. ...' Subsequent to the decision of the Court of Criminal Appeal, the applicant unsuccessfully sought special leave to appeal to the High Court. (b) Period of time since the offence was committed - it is now more than 43 years since the offence was committed. (c) Age of the applicant at the time of the offence - as I have mentioned, the applicant was 20 years of age at the time the offence was committed. (d) Age of the victim, any matters relating to the vulnerability of the victim - the victim was aged between 16 and 17 years of age when the offence was committed. As noted by the Court of Criminal Appeal, the victim was a virgin and she informed the applicant of this. As pointed out by the respondent, the victim was a child, who had been taken to a strange home that evening by her boyfriend. (e) Difference in age between the victim and the applicant and the relationship (if any) between the victim and the applicant - there was a three to four year age difference between the victim and the applicant. (f) Whether the applicant knew, or could reasonably know that the victim was a child - In his statement the applicant said that he had no way of knowing that the victim was a child. He said he assumed she was 18 years of age as earlier that evening she had accompanied her boyfriend, the applicant and others to a nearby hotel. He said she appeared to be 18 years of age and was drinking alcohol. The respondent noted that the victim was part of a wider friendship group of the applicant and there was no evidence that the applicant had targeted the victim. (g) The applicant's present age - the applicant is currently 63 years of age. (h) The seriousness of the applicant's total criminal conduct - the applicant has two further convictions. The first conviction was in April 1968 for the offence of indecent language - he was fined $20 or ten days hard labour. The second conviction occurred in November 1973, for the offence of 'drive with prescribed concentration of alcohol'. He was fined $100 or 20 days hard labour. The applicant explained that this latter offence occurred while he was on work release from prison, when he was involved in a car accident. He was found to have above the prescribed limit of alcohol. (i) The likelihood of repetition - As I have mentioned, it is now 43 years since the offence, which brings the applicant within the terms of s 18(1)(a) (disqualified person), was committed. Since that time he has not committed a further offence of this nature. Indeed there is no evidence of the applicant being involved in any criminal conduct, inappropriate conduct, or disciplinary matters in the last 40 years. As I have mentioned below, in that time, the applicant has had a stable family and professional life. In my view, these are factors that indicate that the likelihood of repetition, by the applicant, of an offence or conduct of that nature is very low. (j) Information given by the applicant - the applicant explained that after serving three years in prison he immediately found work. He said he was fortunate to have learnt a trade while in prison. He said he started his own business and married in 1976. He has two children, now aged 32 and 34. He said his children are balanced and doing well in their community and have never been in trouble with the police. He said he remains in a stable marriage and has been employed as a sales person for the last six years. He has been a member of his church since 1984. He was baptised in 1987 and has been a minister of a congregation, of about 120 people, since 1999. On being informed about the decision of the Children's Guardian, in regard to his application for clearance, the applicant informed the leaders of his church and stood down from his role as a minister pending his application to the Tribunal. In a reference, signed by three members of his congregation, it is stated that the applicant is an exemplary family man and a respected minister. (k) Other matters the Children's Guardian considers relevant - as I have noted, the respondent did not oppose the applicant's application. I also note that in its enquiries, for which the applicant provided full assistance, there is no evidence of the applicant having been the subject of any disciplinary proceedings. Nor has he ever come to the notice of the Department of Family and Community Services. I note that in response to the respondent's enquiries to the applicant's church, its Director said that the applicant had been appointed a minister because of his 'exemplary conduct and behaviour' since he became a member of that church. The Director went on to say that the applicant 'has earned the respect of all in the congregation where he is a member.'

Conclusions and Orders 42Having regard to the matters referred to above, together with the paramount consideration in s 4 of the Act, I am satisfied that the applicant has discharged his onus, as required under subs 28(7) of the Act. That is, I am satisfied the applicant has established (on the balance of probabilities) that he does not pose a risk to the safety of children. The offence, of which the applicant was convicted in 1971, was serious. The applicant acknowledges the seriousness of the offence. However, it was committed more than 43 years ago and since that time the applicant has committed no further offence of this nature. Nor has he been the subject of any disciplinary proceedings or any adverse findings in regard to his conduct. The likelihood of repetition is very low given the passage of time and the applicant's current circumstance. He is in a stable marriage with two grown up children. 43The respondent does not oppose the making of the order and in light of my findings it is appropriate to make the order sought. The effect of that order being that the Children's Guardian is to grant the applicant a working with children clearance. 44Accordingly, I order: 1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of rape, of which he was convicted on 25 March 1971. 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant with a working with children clearance. 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: 04 February 2014