SUBM.1002.007.0001
Royal Commission into Institutional Responses to Child Sexual Abuse
YMCA NSW submissions in response to written submissions
made on behalf of the childcare worker witnesses (CWWS)
Introduction
1.
These submissions are made on behalf of YMCA NSW, Philip Hare, Liam Whitley
and Ann Mary Nolan in response to the written submissions made by counsel for
Alicia Dellaca, Danielle Ockwell, Michelle Bates, Shannon Noble, Chloe Starr, Erin
Turner and Carine Beer (CWWS).
2.
These submissions also provide further clarification in relation to the operation of
the relevant statutory scheme and guidelines promulgated under the Commission
for Children and Young People Act 1998 (NSW) (CCYP Act) with respect to the
Working with Children Check (WWCC) processes for the period 2006 to 2011.
3.
YMCA NSW does not seek to make any further oral submissions for the purposes
of Case Study 2. However, it repeats the statement made in its oral submissions on
20 December 2013 that it will welcome the opportunity to participate in the
formulation by the Royal Commission of its recommendations.
A misconception in CWWS
4.
In paragraph 67 of CWWS, the Royal Commission is invited to reject YMCA NSW’s
submission that “YMCA childcare staff should bear the ultimate responsibility for
failing to comply with a policy, or being complicit in breaches of policy”. However,
YMCA NSW has never made any such submission, and does not do so now. As
was conceded by Mr Hare 1 and Ms Barnat in evidence, and as was expressly
acknowledged by all of Mr Hare, Mr Whitley and Ms Nolan on 20 December 2013,2
the failings demonstrated in this Case Study were not “those of the junior staff alone
but … they extend throughout the institution and its management as it was at that
time.”
5.
YMCA NSW wishes to make clear that, in urging the Commission to give
appropriate weight to, and to prefer, the contemporaneous written record and
evidence supported by it when considering the findings to be made based on the
1
T1586.38-1586.40, T1587.11-1587.12, T1590.46-1591.9, T1591.37-1592.7. See also T1565.28-1565.47,
T1592.25-1592.28.
2
T3546.10-26.
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evidence in Case Study 2, it did not intend to convey disapprobation of the
character or honesty of the child care workers. YMCA NSW acknowledges that its
language in its closing submissions was infelicitous to convey this meaning and
understands how it may have been misinterpreted and may have caused offence.
YMCA NSW’s intention was only to point out inconsistencies in the evidence and to
invite the Royal Commission to take a conventional approach to the soundness of
evidentiary findings based on a witness’ memory where that witness’ recollection is
contradictory and is inconsistent with contemporaneous documentary records.
An important point
6.
Consistent with this position, YMCA NSW does not seek to blame anyone for what
happened – other, of course, than Lord. Instead, its focus has been on participating
in an inquiry into its response, as an institution, to the circumstances examined in
this Case Study. In doing so, the position of YMCA NSW is that the problems
revealed in the Case Study are nuanced and that all of the circumstances must be
properly appreciated if the problem is to be understood in all its complexity. 3 For
these reasons, it is important to critically evaluate the evidence. Accordingly, in its
written submissions in chief (YWSC), YMCA NSW identified evidence that, it
submitted, should not be accepted. As it happens, that evidence came from some
childcare workers. That fact does not constitute an attempt on the part of YMCA
NSW to blame the childcare workers for their conduct at the time, or to qualify its
acceptance of institutional responsibility for what happened and what must now be
done.
The “inconsistency” between YMCA NSW opening statement and its written
submissions
7.
In paragraphs 2 to 6 of CWWS, YMCA NSW is criticised for what are said to be
inconsistencies between its opening statement and the position taken in YWSC. For
the following reasons, these criticisms are unjustified.
8.
First, and as was stated on the first day of Case Study 2,4 it is, and has always
been, the position of YMCA NSW that the child protection training that was
delivered by YMCA NSW at the time of the Lord incidents did not deal sufficiently
with the need to recognise and detect the signs of grooming behaviour.
9.
Secondly, as YMCA NSW pointed out in its written and oral submissions, there is a
significant and material difference between the various assertions from a number of
3
4
T3540.25-3540.32.
T475.34-38.
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the childcare worker witnesses that they never sighted 5 or received training on
policies,6 and the concession made during the opening statement concerning the
challenges in ensuring that staff members have an adequate understanding of
relevant policies. The previously referenced inconsistencies in a number of the
childcare worker witnesses’ evidence7 have demonstrated the former assertion to
be incorrect. They did in fact all receive training on the policies of YMCA NSW. The
latter proposition - ensuring that staff members have an adequate understanding of
relevant policies - is an ongoing challenge which the institution is committed to
overcoming.8
10.
Thirdly, for the reasons that YMCA NSW developed in its written submissions, an
assertion that the failure by the childcare workers to report Lord’s conduct was as a
result of a lack of training cannot stand. For example, Ms Barnat’s evidence
demonstrates that she delivered regular training on topics relating to child protection
issues.9 That evidence should be accepted. As CWWS rightly points out at [61], the
real question is not whether any training was delivered, but why the training that
was in fact delivered was not entirely effective in all of the circumstances revealed
in Case Study 2.10
The application of paragraph 67(a) of Practice Guideline 1
11.
As to paragraph 11 of CWWS, in each case in which YMCA NSW submitted in its
written submissions that evidence of a particular childcare worker witness was “selfserving”, it did not intend that to refer to the subjective quality of the evidence – that
is, for example, the motivation for which it was given. Instead, the submission in
each case pointed to the fact that, looked at objectively, the evidence tended to
serve the interests of the witness. That fact is a legitimate element in weighing the
reliability of the objectively self-serving evidence. Paragraph 67(a) of Practice
Guideline 1 does not require that the objective quality of evidence, or that every
element in a submission about the reliability of any evidence, be put to a witness.
12.
Where there is a conflict between a childcare worker witness’s evidence and any
contemporaneous documentary record of the YMCA NSW, the assertions contained
in the document should be seen as more reliable. In this regard, the training
minutes and memos that were tendered through Ms Barnat were invariably supplied
5
T660.19-26 (Bates).
T633.10-14 (D Ockwell); T597.32-46 (Dellaca); Ex 2-14 at [7], [11]; T745.2-22 (Starr).
7
YWSC at [25] to [73].
8
T478.16-21.
9
T1171.38-T1197.14.
10
YWSC [331]-[333], [334]-[335], [338]-[340].
6
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to the relevant participants and recipients in accordance with Ms Barnat’s standard
practices before they gave evidence. 11 The suggestion of a denial of procedural
fairness in CWWS at [60] should accordingly be rejected.
13.
For the purposes of clarification, as Ms Noble’s evidence was accepted without
challenge in Case Study 2, it is accepted that her evidence is in the same class as
that of Ms Turner and Ms Beer. As such, YMCA NSW does not submit that
Shannon Noble’s evidence is of a self serving nature.12
Michelle Bates' evidence
14.
Paragraph 31 of CWWS submits that Michelle Bates’ evidence as extracted at [49]
of YWSC supports the need for management to take responsibility for the
implementation of accessible induction and training, rather than expecting staff to
prioritise learning policies over caring for children on shift. Whilst the ultimate
submission is accepted, Ms Bates acknowledged in her oral evidence that she was
aware that she was expected to familiarise herself with the policies of YMCA NSW
including the code of conduct, and was obliged to do so by her contract of
employment, yet she chose not to do so.13[1]
Training received by Chloe Starr concerning child disclosures
15.
Paragraph 35 of CWWS makes the following submission in relation to the training
provided to Chloe Starr:
“The submission that the staff meeting conducted on 16 August 2011 (prior to
the allegations against Jonathan Lord surfacing) constituted “training about
what to do if a child made a disclosure of abuse to me” is absurd and should
be rejected.”
16.
The records tendered through Ms Barnat prove that on 16 August 2011 Ms Starr
attended a Childcare Holiday Adventures Staff Meeting. The minutes from this
meeting disclose that the Childsafe Code of Conduct was reviewed by those in
attendance on this occasion.
17.
Amongst other things, on page 3 of 6 of the Childsafe Code of Conduct dated 12
July 2011, the following appears at the eighth dot point under the subheading
“Procedures DO”:
11
T1174.20 -25; T1175.7-1176.20.
Cf CWWS at [56].
13[1]
T676.17-33.
12
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“Ensure all allegations or suspicions of abuse are reported immediately to
your superior and record the relevant details in writing. Follow this up with the
correct external reporting methods in a timely manner.”
18.
When considered in accordance with the evidence of Ms Barnat as to her practice
of running through the scheduled items in a systematic way to ensure that each of
the (minuted) matters was dealt with in an adequate fashion,14 it is submitted that
the available and proper inference is that on 16 August 2011, Ms Starr attended a
meeting where training was delivered about what to do if a child made a disclosure
of abuse to a staff member. The submission in CWWS at [35] should accordingly
be rejected.
Improper characterisation of Sheree Ockwell’s evidence as self-serving
19.
Contrary to CWWS at [40], YMCA NSW has not submitted that Sheree Ockwell
gave self-serving evidence. Rather, and aside from the instances where Sheree
Ockwell could not recall certain relevant matters,15 the balance of her evidence is
relied on positively by YMCA NSW.16
Alleged unwillingness of YMCA NSW management to accept deficiencies in child
protection training
20.
YMCA NSW’s senior management has acknowledged that the child protection
training that was delivered to the childcare worker witnesses was deficient and
requires improvement.
21.
This concession is in addition to the express acknowledgment at YWSC [126] that
the child protection training that was delivered to the staff at Caringbah did not have
an adequate focus on the need for awareness that a child abuser is not restricted to
persons of a certain age and stereotype.
22.
For this reason it is unfair to criticise YMCA NSW for an alleged willingness to deny
responsibility for insufficient training on child protection issues.17 The submission
should accordingly be rejected. This is one of the central areas where YMCA
NSW’s senior management is committed to making further changes.18
14
T1173.18-23.
YMCA NSW submissions at [58].
16
Ibid at [59] – [60].
17
CWWS at [46].
18
T3546.23-26.
15
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Addendum – Working with Children Check Guidelines
23.
In its written submissions in chief (YWSC), YMCA NSW submitted that Counsel
Assisting’s Written Submissions (CAWS) at [77] in relation to the Working with
Children Check (WWCC) was wrong having regard to the statutory scheme as
contained in the Commission for Children and Young People Act 1998 (NSW)
(CCYP Act).
24.
As at 20 December 2013, and save for the 2006 version, YMCA NSW had been
unable to locate each relevant edition of the Working With Children Employer
Guidelines (Guidelines) as promulgated by the Commission for Children and
Young People under the CCYP Act.
25.
The following table sets out which Guidelines were in place when each of the child
care worker witnesses and Lord were employed by YMCA NSW.
Staff member
Date commenced
employment with
YMCA NSW
Working with Children
Employer Guidelines
Jonathan Lord
20.08.09
February 2008
Alicia Dellaca
23.02.06
November 2004
Sheree Ockwell
19.06.06
November 2004
Danielle Ockwell
18.04.07
December 2006
Erin Turner
17.11.08
February 2008
Chole Starr
16.03.09
February 2008
Shannon Noble
18.03.10
February 2010
Carine Beer
29.03.11 (after
having been
employed from 2001
to 2006)
30.05.11
February 2010
Michelle Bates
26.
February 2010
YMCA NSW has subsequently located the Guidelines in force as at 2004, 2008 and
2010 (2004 Guidelines, 2008 Guidelines and 2010 Guidelines respectively) and
wishes to:
(a)
address the 2004, 2008 and 2010 Guidelines as they apply to its
submissions in YWSC; and
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(b)
further address the operation of the statutory scheme provided under
Division 3 of Part 7 of the CCYP Act.
2004, 2008 and 2010 Guidelines
27.
The submissions at YWSC [83]-[104] with respect to the WWCC drew from the
Guidelines as promulgated in 2006 (2006 Guidelines). An analysis of the 2004,
2008 and 2010 Guidelines reveals that the relevant clause 3.3.4 as contained in the
2006 Guidelines is identical to the 2008 Guidelines and is substantially the same in
the 2004 and 2010 Guidelines. 19 Accordingly, YMCA NSW
contends that the
assumptions and submissions previously made at YWSC [83]-[104] concerning the
application of the Guidelines are correct. In particular, the procedures employed
with respect to Lord’s WWCC process were in compliance with cl. 3.3.4 of the 2008
Guidelines. The submission in CAWS at [77] should be rejected for this reason
alone.
“Child-related employment”
28.
At all relevant times, s 37(1)-(2) of the CCYP Act provided:
“(1) This section applies to any decision by an employer to employ a person
in primary child-related employment, being a person not already employed by
the employer in child-related employment of that kind.
(2) It is the duty of an employer to carry out all the relevant procedures of
background checking of the preferred applicant before employing the
preferred applicant in that child-related employment.”
29.
At the time of Lord’s and each of the child care worker witnesses’ employment,
s. 33(1) of the CCYP Act relevantly defined “child-related employment” as
meaning20:
“any employment [of certain enumerated kinds] that primarily involves direct
contact with children where that contact is not directly supervised by a
person having the capacity to direct the person in the course of employment.”
(emphasis added)
19
See 2006 Guidelines clause 3.3.4 and 2008 Guidelines clause 3.3.4, which are identical save for crossreferencing; 2010 Guidelines clause 3 (“Filling a position urgently”); 2004 Guidelines clause 4.4 (page 24,
paragraph beginning “Occasionally this will not be reasonably practical” and following).
20
The introduction on 31 March 2010 by s. 33 (1) (a1) of the CCYP Act of an amended definition of “child
related employment” is of no relevance. This because YMCA NSW’s Caringbah OOSHC is not a “prescribed
children’s service” as the children in its care ordinarily attend school (see ss. 199 and 200 of the Children and
Young Persons (Care and Protection) Act 1998 current at 31 March 2010.
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30.
This definition is reflected in cl. 1.2 of the 2006 and 2008 Guidelines which defines
“child-related employment” by reference to four broad cumulative criteria, one of
which is that “[the employee’s contact with children] is not directly supervised by a
person having the capacity to direct the employee in the course of the
employment”.21 Clause 3.1 of the 2004 Guidelines is relevantly to the same effect.
Clause 1.1 and Table 3 of the 2010 Guidelines are broadly to the same effect in
respect of “child-related employment”. Table 3 of the 2010 Guidelines provides that
“direct supervision is when a supervisor is on site and observes the worker for the
whole time they are with children (except for infrequent and short breaks)”.
31.
The uncontested evidence of Ms Nolan was that, as at 2009, her understanding
was that staff could commence working with children prior to a WWCC clearance
provided that the staff member was “supervised at all times. They weren’t allowed
to be left alone with children.” 22 As has been demonstrated, this is an accurate
articulation of the law as it stood at the relevant time.
32.
The submission in CAWS at [77] that “YMCA NSW did not meet even the “bottom
line standard” in recruiting Jonathan Lord” and that the institution “did not comply
with the relevant legislative requirements in force at the time” 23 is therefore wrong
and should not be made by the Royal Commission. The evidence from Ms Barnat
(which she confirmed from rosters) is that Lord was supervised at all times during
his period of employment prior to the return of his WWCC clearance24.
33.
As there was no evidence adduced as to whether Lord was supervised during his
trial shift (Ms Barnat was unable to recall the shift),25 an adverse finding cannot be
made against YMCA NSW on this issue. In any event, for the reasons articulated in
YWSC at [98], Lord’s trial shift did not meet the threshold of a “decision to employ a
person” as stipulated under s. 37 of the CCYP Act. There was accordingly no
breach of the CCYP Act in relation to this issue.
34.
As a result of these further submissions, the proper finding should be that Lord’s
employment was in compliance with both the CCYP Act and the 2008 Guidelines as
they stood at the time. The evidence of Ms Nolan and Mr Hare that YMCA NSW did
not breach its obligations in respect of Lord’s WWCC process26 is correct.
21
Emphasis added.
T1275.21-1275.31.
23
CAWS at [77].
24
T1137.42-46. See also Nolan at T1268.22-26.
25
T1142.11-34.
26
T1275.21-1275.31, T1558.24-29.
22
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35.
The submission in CAWS at [83] with respect to the other child care workers at
Caringbah is based on the similar misconception that the threshold for a breach of
s. 37 of the CCYP Act depended upon whether a WWCC clearance had been
received before a staff member had “commenced working with children”. As has
been demonstrated, this is an incorrect view of the law. The proper inference to be
drawn from the evidence is that each of the child care worker witnesses were
supervised by another staff member during the period up until their WWCC
clearance was received27.
36.
Given the definition of “child related employment” as discussed above, this means
that there was also no breach of the CCYP Act with respect to the employment of
Danielle Ockwell and Michelle Bates.
37.
For the same reason, the submission in CAWS at [89] in relation to allegedly
misleading statements in YMCA NSW’s press releases, letters to parents and its
opening statement to this Royal Commission concerning Lord’s WWCC process is
also incorrect.
38.
It follows that, in addition to the submissions made at YWSC [83]-[104],
Recommended Findings [RF6], [RF8], [RF9], are not available and should not be
made. In relation to [RF5], it should be noted that Jonathan Lord’s access to
children before the time he had applied for and received a WWCC was supervised
at all times.
G Sirtes SC
I Neil SC
P English
27
Nolan at T1275.21-1275.31.
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