In a decision handed down on 27 September 2017, the NSW Civil and Administrative Tribunal declared a 'disqualified' employee should be granted a working with children clearance on the basis he no longer poses a child safety risk, despite a 1978 conviction for attempted sexual assault of a 14 year old girl.
The applicant, ‘DAS’, is a 59 year old Aboriginal man who sought an enabling order, pursuant to the Child Protection (Working with Children) Act 2012 (NSW) (“WWC Act”) so that he could continue to work in his role as a Drug and Alcohol Transport Field Officer.
His 2016 application to the NSW Children’s Guardian for a clearance was refused on the basis he was a “disqualified” person arising from a 1978 conviction for an attempt to "unlawfully and carnally know” a 14 year old girl.
The applicant submitted he only pleaded guilty on the advice of his solicitor and any event, he no longer presents a risk 40 years since his conviction.
Consideration and finding
WWC Act contains a statutory presumption that the applicant poses a “risk” to the safety of children, unless he proves the contrary. In determining an application for an enabling order, the Tribunal must consider a number of factors, including the:
of the offence,
period of time since the offence,
conduct of the person since the offence,
age of the person at the time the offence occurred,
age of the victim, and
impact on children of any such repetition.
In addition, the Tribunal must consider:
whether a reasonable person would allow their child to have direct unsupervised contact with the affected person, and
was it in the public interest.
Senior Member Higgins and General Member Murray noted the object of the WWC Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.
In assessing the current issue, the Tribunal took the following factors into consideration:
The offence was not at the serious end of the scale of seriousness and this was reflected in the penalty imposed (a $100 fine),
It is almost 40 years since the offence,
The applicant was 19 at the time, 5 years older than the victim,
The applicant’s most serious offending ceased almost 40 years ago, and
A forensic psychologist report concluded the likelihood of the applicant re-offending is very low.
Ultimately, the Tribunal was satisfied a reasonable person with knowledge of the same information would allow their child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.
Comments on the decision
While the Tribunal acknowledged that the applicant’s 1977 sexual offending was serious and if repeated would have a devastating effect on a child or young person, it placed significant weight on the fact that over the intervening 40 years the applicant has not committed an offence of this kind again.
Tips for local government
This case is a reminder that while past conduct needs to be taken into account when assessing the present ability of an employee to undertake particular work, an extended period of time with no reoffending can often provide the opportunity to afford such staff a second chance. However, when duties involve the holding of a valid Working with Children Check, caution and strict adherence with the Act is a paramount consideration.
DAS v Children’s Guardian  NSWCATAD 289 (27 September 2017)
Aimee Saaib is the Practice Manager of O'Connell Workplace Relations and has considerable experience in conducting impartial, third-party investigations with clients in the public sector, local government and private sector. She is currently completing a further course of study at UTS Law School.