WEST AUSTRALIAN MAN AQUITTED OF CHILD SEX OFFENCES SEEKS REVIEW OF A DECISION DENYING HIM WORKING WITH CHILDRENS CHECK
IGR -v- CHIEF EXECUTIVE OFFICER DEPARTMENT OF COMMUNITIES [2020] WASC 371 (16 October 2020)
This case involves an application for assessment notice by the applicant alleging that the tribunal failed to properly undertake the required statutory task in evaluating whether “unacceptable risk” of future sexual or physical harm to children which resulted to the applicant’s prohibition to engage in a child-related work
Facts:
The appellant was charged in 2004 with offences contrary to s 329(2) and s 329(4) of the Criminal Code (WA). All of the charges related to the same complainant (C) who was under the age of 13 at the time of each alleged offence. The offences have an element of sexual misconduct in relation to a child under the age of 13. In 2006, after a trial by jury, the appellant was acquitted of all charges.
In 2015 the appellant applied for an assessment notice, but was issued with a negative notice by the Chief Executive Officer, Department for Child Protection and Family Support (CEO). The appellant is prohibited from engaging in child-related work.
The appellant applied to the State Administrative Tribunal to review the decision of the CEO. He was initially successful, but the decision of the Tribunal was overturned on appeal, and the matter remitted to the Tribunal, differently constituted.
Counsel for the appellant submitted that, having found that it could not make a positive finding that the alleged conduct had or had not occurred, it was a necessary part of the Tribunals' review function to conduct an analysis and evaluation of the relevant risk having regard to the factors in s 12(8). Counsel submitted that the Tribunal reasoned directly from a conclusion that C's allegations might be true to a finding of unacceptable risk, and did not engage in the necessary task of analysing and evaluating the actual degree of any future risk to children if the appellant was issued an assessment notice, and the actual likelihood of any such future risk materialising. Counsel submitted that there is nothing in any of the findings made by the Tribunal to show that those findings were themselves the basis of any analysis or evaluation of risk.
Counsel for the respondent submitted that the legislation adopts a precautionary approach. Counsel further submitted that the process is predictive, requiring the decision maker to have regard to the nature of the risk (including the degree of harm if the risk materialises) and the likelihood of the risk materialising.
Issue: Did the tribunal fail in properly undertaking the required statutory task of evaluating whether “unacceptable risk” of future sexual or physical harm to children?
Law:
- S12 of Working with Children Criminal Record Checking Act 2004
Analysis:
Nowhere in the reasons of the Tribunal is there such an assessment of the nature of the risk ‑ beyond the general findings that the alleged offences were highly relevant to child related work, and that the effect of any similar conduct as alleged, were it to occur in the future, would be significant. The finding that C's allegations 'might' be true - is not a finding that the alleged conduct did or did not occur. Nor did the Tribunal express its finding as it having a reasonable suspicion that the allegations might be true.
Such a finding is the beginning and not the end of the analysis. To proceed, as the Tribunal did, on the basis of a finding that the allegations might be true to a finding that there is an unacceptable risk is a failure to carry out the task mandated by s 12.
It is not sufficient to refer to the paramount consideration without analysing why, in the particular circumstances of the case, all of the considerations to which the decision-maker must have regard led to the conclusion that the issue of a negative notice is in the best interests of children.
Conclusion: The appellant should have leave to appeal and the appeal should be allowed. The matter should be sent back to the Tribunal for reconsideration by a Tribunal differently constituted.
