BDL v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-07-05

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BDL (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent)

Solicitors: BDL (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1410112 Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

The applicant is known by the pseudonym "BDL" in these proceedings in order to protect the identity of the victims and the applicant himself. On 22 December 2015 judgment was delivered by Principal Member Higgins in the decision BDL v Children's Guardian [2015] NSWCATAD 268. The applicant sought that his application be determined on the papers. The application was granted and the reasons are contained in that judgment. As a result of that decision directions were made for the filing of any further submissions or evidence. By a letter dated 8 February 2016 the parties were notified that the time referred to in order 4 of that judgment was varied so that the decision is to be made in this matter after 14 March 2016. These matters are referred to in more detail later in these reasons.
This is the decision made on the papers pursuant to section 50 of the Civil and Administrative Tribunal Act 2015 (NSW) in accordance with the decision BDL v Children's Guardian [2015] NSWCATAD 268.
The procedural history of this matter is set out in BDL v Children's Guardian [2015] NSWCATAD 268 at [18]-[38] and will not be repeated in these reasons unless it is relevant to this decision. There has been, suffice to say, a long history in relation to these proceedings. As can be seen by the exhibits list, a large amount of documentary material was also filed.
The applicant applied for a working with children check clearance on 17 June 2013. On 4 September 2013 the Children's Guardian determined pursuant to section 17 (1) of the Act that the applicant should be subject to an interim bar on the applicant engaging in any child - related work.
On 10 March 2014 BDL filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") concerning the decision of the Children's Guardian, made on 4 September 2013, to impose the interim bar just over 6 months earlier: see section 27(3) of the Act. The respondent determined the application for a working with children check clearance on 29 April 2014, subject to the right of review to the Tribunal, and decided that the applicant poses a risk to children. That decision is the subject of this review and the earlier decision to impose an interim bar is consistent with the later final decision. Once a final determination is made the interim bar ceases to have effect. The formal reasons for the determinative decision were filed in the Tribunal on 29 July 2015.
The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 do not apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.
In summary, the applicant's workplace record consists of substantiated allegations involving misconduct of a sexual nature directed towards female students. This misconduct occurred at two separate schools. The applicant was employed as a casual schoolteacher. The substantiated conduct included encouraging students to use or experiment with marijuana which is an illicit drug. The applicant also has a criminal history which includes common assault, breaches of Apprehended Violence Orders, two incidents of resisting, injuring and assaulting police, possession of prohibited drugs and a police pursuit. The applicant also has qualifications to engage in nursing employment. These matters will be referred to in more detail when considering relevant matters under section 30 of the Act.
The applicant is without a Working with Children Clearance, preventing him from working in "child-related work" using his qualifications or otherwise: section 6 and section 8 of the Act; clauses 6, 10 of the Child Protection (Working with Children) Regulation 2013.
The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.
There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.
It is doubtful that the Tribunal may lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. Although the applicant only wishes to coach sporting teams made up of children, a conditional grant of a clearance for that purpose is not permitted by the legislation.
An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting the disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
The Tribunal has been assisted by written submissions. The applicant's submissions are contained in an affidavit filed 14 August 2015. The applicant sought that the matter be determined on the papers and the previously referred to decision by Principal Member Higgins granted that application.

The evidence relied upon

The applicant relied upon the following documentary material, which contains as annexures relevant submissions made by the applicant in relation to a stay application and other documents previously relied upon by the applicant: 1. Affidavit filed 14 August 2015 - Exhibit A1;
No further documents have been received by the Tribunal to the date of this decision, in accordance with the directions made, and it is the current situation, therefore, that there is no further material relied on by the applicant.
The respondent relied upon the following documentary material, using the same references as those made by the respondent in the written submissions: 1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 24 July 2015, comprising 347 pages - Exhibit R1; 2. Written reasons for decision filed 29 July 2015 - Exhibit R2; 3. Tender Bundle Volume 1 comprising 438 pages -Exhibit R3; 4. Tender Bundle Volume 2 comprising 337 pages - Exhibit R4; 5. Tender Bundle Volume 3 comprising 383 pages -Exhibit R5; 6. Tender Bundle Volume 4 comprising 437 pages -Exhibit R6; 7. Tender Bundle Volume 5 comprising 540 pages -Exhibit R7; 8. Tender Bundle Volume 6 comprising 374 pages -Exhibit R8.
The respondent also filed written submissions on 29 January 2016. The applicant was provided these documents by the respondent.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.
The applicant was advised by email on 21 December 2015 that the decision of 22 December 2015 would be published on the Caselaw website after 10 am on that day. A paper copy of that decision was subsequently sent to the applicant's previously nominated post office address by the Tribunal. The Tribunal did not receive any correspondence from the applicant following publication of those reasons. The applicant did not comply with order 1 of the decision published on 22 December 2015 and did not appear at the directions hearing listed on Thursday, 21 January 2016 at 2:30 p.m. The respondent filed the documents referred to previously which have now become exhibits in addition to the written submissions, on 29 January 2016. The applicant did not file any further material despite being given the opportunity to do so by letter dated 8 February 2016 from the Divisional Registrar sent to the applicant at his email address and post office box recorded in the formal papers filed with the Tribunal by the applicant.
The correspondence from the Divisional Registrar dated 8 February 2016 advised the parties that directions had been made by the Tribunal as follows: 1. On or before 29 February 2016 the applicant must file and serve any further evidence and written submissions in reply to the material and the written submissions filed by the respondent on 29 January 2016. 2. On or before 11 March 2016 the respondent is to file and serve material in response (if any) to the material and submissions filed by the applicant in accordance with direction 1. 3. The date in order 4, as contained in the decision BDL v Children's Guardian [2015] NSWCATAD 268 (published on 22 December 2015) is varied to 14 March 2016.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous two paragraphs of these reasons is as the Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
The practical or forensic onus but not the legal onus is thus carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is identified for the parties. The written submissions of the respondent refer to these provisions which appear to be extracted from and supported by the earlier relevant decisions of the Tribunal.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
The objects of the Act are set out in section 3 which provides: "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."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows: "14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person."
The applicant was properly the subject of a risk assessment due to the provisions of clause 2(a) of Schedule 1 of the Act which reads as follows: 2 Findings of misconduct involving children A person has been the subject of a finding by a reporting body that the person engaged in the following conduct: (a) sexual misconduct committed against, with or in the presence of a child, including grooming of a child. (b)…….
The respondent also submitted that the circumstances in which a risk assessment may be conducted are not limited by section 15 (1) or 15(2) of the Act. It is also clear that having regard to the applicant's criminal history there is a pattern of behaviour which may have also been a reasonable basis upon which to conduct a risk assessment having regard to clause 1(6) of Schedule 1 of the Act.
The hearing before the Tribunal is pursuant to an application under subsection 27 (1) and or subsection 27(3) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436. This matter has particular relevance to a decision on the papers.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; 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].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is guided by the decision in the Supreme Court BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order: "However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [33]. It is useful to set out the reasoning behind the Tribunal's determination in this decision.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act. The applicant does not seek a conditional approval.
The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
In the following paragraph the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and with approval in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.
In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states: "Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."
If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.
It is the Tribunal's assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

The Issue

As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].
The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.
Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act provides as follows: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
Section 30 of the Act provides as follows: 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.
The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.
Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.

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

The applicant is not a disqualified person.
The applicant's workplace record contains substantiated allegations involving misconduct of a sexual nature towards female students at two separate NSW High Schools in 2002. This misconduct is of a serious nature.
The applicant was employed as a casual high school teacher at two different NSW regional High Schools. The applicant has denied the allegations which were made about his behaviour. Despite those denials the allegations were substantiated.
As part of the investigation of the allegations, five students were interviewed by the investigator. The investigator considered that on the balance of probabilities the allegations were substantiated. Those substantiated allegations are summarised as follows: 1. Propositioning and making remarks of a sexual nature to the following effect to a female year 9 student: 1. "Do you like married men? Older men?" 2. "I want to taste you." 3. "Do you want to taste me?" 4. "You are the most beautiful girl in the school." 5. "You have eyes like my daughter." 6. "Oh if I was happy in my relationship do you think I'd be saying stuff like this?" 7. "You know you can't tell about this. You can't even tell the girl sitting next to you." 8. "You know you can't say anything about what I'm saying because I can get into so much trouble just saying that sort of stuff." 9. "I could get into trouble if you said anything to anyone." 10. "You know, I'll come and get your number off you at school. Do you want my number?" 11. "Come back here, come back here." (Said after the applicant followed a student down the corridor). 1. Travelling on his bicycle alongside the bus that the same student was travelling on while blowing a kiss and making facial gestures of a sexual nature (sticking his tongue out of her). 2. Standing in a bus way staring at the same student back for a number of minutes. 3. Asking another student if he knew the whereabouts of the student involved in previous allegations. 4. Encouraging four year 11 students to use marijuana. 5. Mouthing to another student the words: "I can get you marijuana if you want". 6. Making further comments of a sexual nature to a different group of 16-year-old students to the effect that they are "legal" and "can do whatever you want", suggesting that a woman can give birth at 16 (referring to his mother). 7. Making facial gestures of a sexual nature to another female student, including winking at her and running his teeth along the top of his mouth a number of times. 8. Asking another female student a number of times if he had seen her at the pub.
Despite denials by the applicant the principal investigator considered there was sufficient evidence to support the allegations and found on the balance of probabilities that the events which were the subject of the complaints more likely than not occurred and therefore recommended disciplinary action. The principal investigator considered a number of similar complaints and corroborative evidence from other students who were interviewed. There were a number of discrepancies in the applicant's statements made at different times and aspects of the applicant's past employment history were relayed by the students, suggesting that the applicant had spoken with them about matters relevant to his previous experience. The applicant also suggested that a group of students were attempting to hide a package which was suspected of containing illicit substances which he did not immediately report. In his response to the allegations the applicant stated that an unnamed female student ran away in possession of the package. The Principal's character assessment of the Year 11 students, and the observations of the District Guidance Officer supported the credibility of the Year 11 students. That investigation was conducted more thoroughly than is possible in these Tribunal proceedings. The investigation had regard to evidence from eyewitnesses contrasted to the denials and explanations by the applicant.
In response to that investigation the applicant has made no detailed response in the documents that he has filed in the Tribunal. The material the applicant has provided does not assist in assessing the facts and mitigating the current risk the applicant may pose to children. The references provided by the applicant do not make any reference to their knowledge concerning his prior employment history. In particular, they do not make reference to the fact that he is on the not to be employed list due to the substantiated matters relating to the applicant's conduct with students.
The documents submitted by the applicant to the Children's Guardian would appear to be almost the same documents he relies upon in the Tribunal. It is recorded in the Children's Guardian assessments that the applicant has referred to the allegations as "not true", "rubbish" and "false". The applicant also stated in a telephone call with the Children's Guardian on 4 November 2013 that since the workplace record was from many years ago this should not be considered in the assessment.
In an undated letter to a solicitor apparently retained by the applicant in 2010 the applicant states: "I strenuously deny the allegations, and reiterate that I did not make any of the alleged comments or gestures of a sexual nature to any female students. The allegations have been contrived in retaliation to me mandatory(sic) reporting that I had witnesses(sic) a suspicious package being exchanged in the school grounds between a student [named] who was absent from the ED class that day and another female student as per my statement dated 18/10/2020 (sic) and 19/01/2002."
The applicant complains in an email dated 28 July 2013 to the Children's Guardian that the teachers union has refused to assist him and even made him pay for legal assistance. The applicant also says in that email that he hired a private solicitor for a time in 2002 with no success.
Even though the applicant has not been cross-examined about these matters in order to put forward his version or explanation concerning those allegations it is open to the Tribunal to accept as a factual matter that the allegations were sustained. The denials by the applicant are also accepted as a factual matter. It is also clear that the applicant has not successfully challenged the substantiated findings. The applicant has taken steps to impugn the integrity of the findings, but the findings remain undisturbed. The Tribunal has had the benefit of reading the written findings of the investigator and there does not appear to be any obvious failures in the process of the investigation. Ultimately, the investigator who had the benefit of speaking with the eyewitnesses and considering the statements of the applicant came to a conclusion on the balance of probabilities which was available to the investigator.
It is recalled that it was the applicant who sought that this matter be determined on the papers. The Tribunal has had appropriate regard to the documentary material to make its own assessment on the balance of probabilities.
The applicant also has a broader criminal history which is referred to in more detail under the appropriate heading later in these reasons. These are also serious matters.
Reports made to the Department of Family and Community Services between 2010 and 2013 alleged a direct adverse impact on the psychological well-being of the applicant's children in relation to the ongoing neighbour dispute. It is recorded that the applicant has gone to extreme lengths to take ownership of the accessway at the centre of the dispute, which according to court documents has been confirmed by the Council to be on communal land. This dispute has resulted in multiple breaches of the provisions of apprehended violence orders, two common assault convictions, two resisting police convictions and have resulted in the reports to the Department of Family Community Services. The applicant is alleged to have used his children as a shield to prevent arrests and has coached them to hold onto him in order to prevent the police from intervening. The police have stated to the applicant that it causes his daughter distress by doing this, but that did not deter him from continuing to make his children passive participants in the dispute. The children have been alleged to film and record arguments that take place outside the family home and that the applicant has removed his daughter from school in order that she can film that dispute. It is also reported that the 3-year-old was placed in her pram in the middle of the road to prevent people from passing. It was also reported to the Department of Family and Community Services that the applicant has been "hugely aggressive and very intense with the child".
The applicant has also been reported to be verbally abusive towards other children and parents at a tennis club which his child attended. The applicant, in an email dated 28 July 2013 to the Children's Guardian, refers to the fact that other tennis coaches are very mean to his daughter because "I am her father and coach."
Additionally, it has been implied by the allegations made by the students that the applicant has used marijuana. Other charges have been laid against the applicant suggesting that he has been found in possession of prohibited drugs. The applicant has not addressed this issue with the Children's Guardian or in the Tribunal. These allegations are considered a lesser seriousness than the other substantiated allegations which been made about the applicant.
It was alleged that whilst the applicant worked as a teacher in Queensland in 2009 he behaved in an inappropriate unprofessional manner by attempting to procure a dangerous drug (marijuana) through school-related contacts (the parent of one of his students), and secondly, that he behaved in an inappropriate and unprofessional manner by attempting to arrange the supply of a dangerous drug through an education facility via the student's school bag. The Queensland Department of Education and Training sent a letter to the applicant on 23 May 2011 advising that the allegations made against the applicant were substantiated by the Department and consequently all applications for employment lodged by the applicant will be referred to the Executive Director. The applicant was informed that he should immediately desist from contacting the Department because previous communication from the applicant "has been less than cordial". Exhibit R4 page 787.
The Queensland College of Teachers brought disciplinary proceedings against the applicant in the Queensland Civil and Administrative Tribunal (QCAT) in 2012. As a result of those proceedings the referral by the Queensland College of Teachers was dismissed on 18 April 2013. This was not an action brought by the Department of Education and Training and did not bind the Department's decision-making processes. The decision by QCAT did not alter or reverse the findings which were made by the Department.
A letter dated 15 May 2013 was sent to the applicant from the Queensland Department of Education Training and Employment after the decision informing him that he could not obtain employment as a teacher from that Department without the approval of the Department's Executive Director. A further letter was sent on 17 July 2013, from the Office of the Minister for Education Training and Employment in Queensland, to the applicant confirming the decision previously notified by the Department. The applicant was invited to provide further information and evidence which would warrant the amendment or lifting of the notice. The applicant, on the evidence provided to the Tribunal, has not taken up that invitation. Consequently, the applicant is unlikely, without further information, to receive approval to teach in the Queensland education system.
Having regard to all the circumstances, the Tribunal finds on the balance of probabilities that the events upon which the misconduct findings were made occurred.

The period of time since those matters occurred and the conduct of the person since they occurred

The time which has elapsed since the misconduct in the applicant's workplace record is 14 years.
The applicant was placed on the "not to be employed in any capacity" list by the NSW Department of Education and Training (as it was then known) on 4 September 2003. The applicant remains on that list. The applicant worked as a temporary teacher at various schools in Queensland between 2000 and 2008. The applicant does not clearly contend that he has worked in child-related employment since that time.
The applicant has been engaged in disputes with his neighbour since 2010. Those disputes have led to charges of common assault, resisting hindering and assaulting police, and a number of AVO breaches (9) brought against the applicant. These offences are referred to in more detail elsewhere in these reasons.

The age of the person at the time the offences or matters occurred

The applicant was 34 years old at the time of the misconduct as a teacher in New South Wales.

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

The victims of the applicant's misconduct were students in years 9 and 11 and accordingly were aged between 14 and 16 years old.
The applicant was a casual high school teacher of those students. They were vulnerable because of their age and also because the applicant was in a position of authority and trust in relation to his students. The students were at a crucial time in their social development and were subject to the influence of the applicant as a role model and should have acted in a mature manner in his dealings with those students.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

The difference in age between the applicant and his students was between 18 to 20 years.
The applicant has biological children of his own who have experienced the applicant's violent and harassing behaviour towards their neighbour and disrespect to the authorities including the police.

Whether the person knew, or could reasonably have known, that the victim was a child

The applicant knew that the students were children because he was the students' teacher and he is the father of his own children who have been exposed to violence.

The person's present age

The applicant is currently aged 47.
The applicant is expected now to be more mature than when the misconduct occurred. There is no independent evidence to show that the applicant has in fact shown greater maturity in his dealings with children and other members of the public.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

The applicant has a lengthy involvement with the criminal courts beginning in 2001 with a charge of common assault in Queensland. The applicant was admonished and discharged with no conviction recorded.
The applicant has received the benefit of a good behaviour bond for charges which he faced in February 2009 at Brisbane Magistrates Court. The applicant was charged with possession of property suspected of having been used in connection with the commission of a drug offence, and with possession of dangerous drugs. The applicant apparently pleaded guilty to the possession charge. No conviction was recorded, however, the applicant was placed on a good behaviour bond. This matter was referred to in the investigation by the Queensland Department of Education and Training which was occurring at the same point in time.
In 2011 the applicant was charged and convicted in the Local Court of 14 offences including destroy or damage property, contravene prohibition/restriction in an AVO, resist officer and execution of duty, and common assault.
On 9 February 2012 appeals lodged by the applicant against some of those convictions in 2011 were dismissed in the District Court. As a result the convictions remained.
On 23 November 2012 the applicant was charged with charges of common assault, contravene prohibition/restriction in an AVO, and resist officer in execution of duty. The applicant received bonds for a period of 2 years pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant stated in a letter dated 27 August 2013 that this matter was on appeal in the High Court. There is no document other than this letter provided to the Tribunal which adds any further certainty to that claim.
On 8 July 2013 the applicant was charged with possess prohibited drug and police pursuit, not stop, drive at speed. The applicant was convicted on 12 September 2013 and sentenced to imprisonment for 9 months with a non-parole period of 6 months for police pursuit, not stop, drive at speed: Exhibit R3 page 67. This was appealed to the District Court which on 24 November 2014 pronounced a sentence of 9 months imprisonment commencing on 17 June 2014 with a non-parole period of 6 months: Exhibit R3 page 244. The applicant was said to have been bail refused at the time of sentencing in the District Court.
On 7 August 2013 the applicant was charged with wilfully obstruct officer in the execution of duty and contravene prohibition/restriction in an AVO. The applicant was sentenced on 7 May 2014 to 8 months' imprisonment with a non-parole period of 6 months: Exhibit R3 page 157, 160. A presentence report was requested by the court, but the applicant failed to attend appointments then became aggressive with the Community Corrections Officer when he was contacted by telephone. It is recorded by the Community Corrections Officer that the applicant "was in a belligerent incoherent state, ranting that he was the innocent party and the victim of a corrupt system." Exhibit R3 page 180.
The applicant has thus been involved in many court proceedings. The applicant is on the evidence from the police and Community Corrections apparently convinced that he is an innocent participant and that the police and the court system is biased against him.
The Magistrate who sentenced the applicant on 12 September 2013 (which was appealed to the District Court unsuccessfully by the applicant) made these remarks on sentence about the offence, at Exhibit R3 pages 726-727: "The defendant, as can clearly be seen from the video was riding his motorcycle along the road from [named Road and location]. The police chased him and got to speeds of 151 km/h. The camera that was shown there was from the second car because the first car's camera was faulty but both police officers gave clear evidence as to the motorcycle and indeed, the first police officer gave evidence very clearly of seeing the police officer pullover at [named location] turn around and drive back to [named Road]…. This is a matter that involves extreme danger to the community. The law was recently changed and Parliament doubled the maximum penalty for this offence. It is colloquially known as Skye's Law, named after a young child who was killed during a police pursuit when a car being pursued drove into them. The aggravating features of this case are as follows. Firstly, the actual speeds reached were extraordinary. Secondly, the speed limit at that time, over the entirety of the road, is 80 km an hour but there was obviously road works there and the police officer gave clear evidence that you drove straight through the red light, forcing other cars off the road in a one lane area. It is an area inhabited by a lot of people. There was obviously a lot of vehicles on the road there and the danger to members of the community was extreme. Also, of course, there is danger to the police officers who are engaged in that sort of chase on that sort of road reaching 151, on my notes, kilometres per hour. Even if for one moment I was to accept what was your version of events, even then, the driving fits within the category of not stopping during a chase but, as I have indicated, I am satisfied beyond a reasonable doubt that it was you indeed who was driving the whole time on the motorcycle. So the level of danger is extreme."
The police also charged the applicant with possession of drugs which were in the pannier bag on the motorcycle ridden by the applicant.
The matters contained in the applicant's criminal history are serious and it is apparent that the applicant shows little remorse for his actions. The history shows that the applicant has little regard or respect for authority and feels victimised. The applicant has shown very limited insight into the effect of his behaviour on other people.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

The applicant is not permitted to teach in the State Education system in New South Wales and requires further assessment in order to teach in Queensland. It is therefore unlikely that he will be in a position where he is permitted to be the teacher of adolescent students or children.
The applicant has not provided any psychological risk assessment. The Tribunal is aware of the caution which should be attached to risk assessments and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 at [67] and BKV v Children's Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children's Guardian [2016] NSWCATAD 3 at [91]-[92].
In essence, what expert witnesses in this Tribunal have stated is that prediction of a relatively uncommon behaviour such as sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and "gut feeling" play a determinative role in making a judgment.
The applicant, to the knowledge of the Tribunal, has not undertaken any actuarial risk assessment and consequently no recent psychological assessment is relied upon by the applicant. The applicant is evidently also not engaged in any treatment, counselling or courses to alleviate any concerns about risk that the applicant may pose to children.
Therefore, there is an absence of clinical assessment or judgment of the capacity of the applicant to refrain from repeating past behaviours.
Having regard to all the circumstances, the Tribunal has found on the balance of probabilities that the events upon which the misconduct findings were made probably occurred. The Tribunal has also found that there is an unacceptable risk of harm posed by the applicant to children having regard to all the circumstances referred to in the preceding paragraphs. The Tribunal cannot accurately predict whether the conduct of the applicant will be repeated. The evidence from the applicant is not persuasive that there is no risk of repetition given his stance in relation to the allegations. If it is repeated behaviour the impact on children is likely to be significant and adverse to their healthy development.
The records from the Department of Family and Community Services clearly record that the applicant and his wife have involved their child in criminal behaviours concerning the neighbourhood dispute where the applicant has impeded his neighbours use of council owned land for access to their property. The assessment by the child welfare authority is that neither the applicant nor his wife are a protective factor for their eldest child and her non-attendance at school and her sibling's young age raised the risks associated with lack of these protective factors.
The applicant has not acknowledged to the Tribunal or shown evidence to the Tribunal of any real insight into the psychological and emotional impact on the children who were the subjects and victims of his actions.
Until there is an acknowledgement of the extent of the past abusive behaviour and sustained positive effort to address that behaviour, it is the assessment of the Tribunal that the likelihood of a repetition of that behaviour remains significant: cf. T v H and Ors [1985] NSWSC, Unreported 19/12/1985; SS v Department of Human Services (NSW) [2010] NSWDC 279 at [111]-[114]; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 especially at [62] referring with approval to T v H and Ors.

Any information given by the applicant in, or in relation to, the application

The applicant has provided information contained in Exhibit R1 at pages 9-11 and pages 31-50, as well as his affidavit Exhibit A1.
The applicant's affidavit contends that he should have been granted a clearance because the applicant is not a disqualified person. The applicant also seeks an enabling order, which is an order sought under section 28 of the Act. Because the applicant is not a disqualified person the applicant does not have standing to apply for an enabling order. The applicant also requested that this matter be determined by the President of the New South Wales Civil and Administrative Tribunal because the applicant's interests have been affected greatly, the process is not transparent as required by law and the applicant has been deprived natural justice because there has not been granted an enabling order: Exhibit A1 [45].
The applicant's interests may well have been affected by his inability to obtain child -related employment, however the primary purpose of this application and determination is to determine whether the applicant poses a risk to safety children. The process has complied with the requirements of the legislation. As previously stated, the applicant is not entitled to an enabling order pursuant to section 28 of the Act, but is exercising his entitlement to a review of the decision of the Children's Guardian pursuant to section 27 of the Act. The Tribunal as currently constituted has sufficient authority to determine this application.
The Children's Guardian has not submitted that the applicant has failed to provide specific relevant information. The respondent has however more generally submitted that there is no further information provided by the applicant to either the respondent or the Tribunal in order to show that he does not pose a risk to children.
The applicant has not taken advantage of the directions made for him to provide further material should he have thought it expedient to do so or to support his application.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary. The respondent relied upon the reasons for the decision contained in Exhibit R2.
The Children's Guardian submits that the applicant should not be granted a working with children check clearance.
The respondent submits that a real and appreciable risk to the safety of children is present.

Consideration

The behaviour and conduct which triggered this assessment is a serious matter. The Tribunal is satisfied that the behaviour and conduct of the applicant betrayed the trust reposed in him by the parents of the students and by the authorities including the principals of schools at which he was a teacher.
Having regard to all the circumstances, the applicant thus poses an unacceptable risk of harm to the safety welfare and well-being of children.
The harm perpetrated by the behaviour of the applicant is likely to resonate with the students and his own children for many years to come.
The applicant's behaviour in relation to the ongoing property dispute with his neighbour has exposed his own children to adverse psychological impacts. Information provided by the Department of Family and Community Services records risk of harm reports made about the applicant's children who have witnessed arguments, been used as "shields" to prevent arrests and have been used to record or film arguments with the neighbour.
The behaviour of the applicant, if repeated, would be more likely than not to do significant harm to children.
The applicant has identified only very limited factors which would mitigate in his favour. The applicant has been supportive of his wife and family.
The applicant has not acknowledged or shown insight into the effects of his conduct. The applicant has shown no apparent remorse. Remorse on its own, in any event, is insufficient to ameliorate risk.
The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Conclusion

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children posed by the applicant.
The evidence received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
If the Tribunal is in error in concluding that there is a real and appreciable risk of harm to children, it is concluded on the balance of probabilities that the circumstances surrounding the alleged conduct by the applicant means that the existence of such a risk has not been disproven.
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act, the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. The decision of the Children's Guardian should therefore be affirmed.

Orders

The order of the Tribunal is that: 1. The final decision of the Children's Guardian dated 29 April 2014 to refuse the applicant's application for a Working with Children Check clearance is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 12 June 2018

Civil and Administrative Tribunal Act 2015(NSW)

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (38)