BMU v Children's Guardian [2015] NSWCATAD 129 | Case summary

NCAT Administrative and Equal Opportunity|2015-03-13

ustoms (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 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 Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 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] NSWIRComm 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 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BMU (Applicant) Children's Guardian (Respondent) Representation: Counsel: M Higgins (Respondent)

Judgment

The applicant, known as "BMU" in these proceedings, on 24 September 2014 filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") concerning a decision of the Children's Guardian, made on 28 August 2014, to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.
The Act came into force on 15 June 2013.
The applicant applied for a working with children check clearance on 14 October 2013.
On 22 July 2014 the Children's Guardian forwarded a notice of proposed refusal of the application and gave the opportunity to the applicant to submit further information.
In the letter from the Children's Guardian to the applicant dated 28 August 2014 the applicant was informed that the Children's Guardian decided that he poses a risk to children. In other words, the applicant was refused a Working with Children Clearance preventing him from working in "child-related work": see section 6(2)(d), (f), (h), (m) and section 8 of the Act; clauses 7, 9 of the Child Protection (Working with Children) Regulation 2013. The applicant states that he wishes to work in "child-related work" in the fitness industry, gyms, and in other employment where children are likely to come into contact with the applicant.
The applicant filed an administrative review in the Tribunal on 24 September 2014. The grounds upon which the applicant seeks a review of the decision identified in that application are extensive and summarised as follows: 1. Failure of the Office of the Children's Guardian to provide Natural Justice, 1. under this ground there are 10 separate points alleging that the Children Guardian: 1. had regard material to which the applicant has not responded or been given the opportunity to make submissions; 2. that the applicant was misled about an application he made on 24 March 2014 under the Government Information (Public Access) Act 2009 (NSW) relating to records relating to his employment; and 3. failing to provide access to that material [referred to already]; 4. alleged bias 5. misleading the applicant by failing to take into account relevant transcript materials concerning the applicant's criminal record history despite representing that it was in possession of that material 6. having regard to additional material including the transcript of the criminal proceedings instigated against the applicant which is allegedly irrelevant and was allegedly undisclosed to the applicant as part of the process of assessment; 7. failed to take into account the evidence given under oath at the hearing the criminal charges, failed to give weight to the directions given by the court to discharge the applicant and the finding of not guilty directed in relation to a grooming charge, and failing to notify that the records it did [in relation] to [or for assessment of] the applicant; 8. having regard to the workplace records of the applicant without at the same time having regard to the transcript of evidence at the criminal trial; 9. failing to give proper weight to the psychological report, statutory declarations and references provided by a number of people; 10. determining and characterising the applicant as a risk to the safety of children is a penalty and a disproportionate response to the materials and information before the Children's Guardian 1. Failure of the Office of the Children's Guardian to take into account [the applicant's] Continuing Education: 1. failing to give proper weight to vocational and educational courses undertaken by the applicant and his change of employment so that the finding that he "poses a risk to the safety of children is disproportionate, unreasonable and excessive in the circumstance"; 2. failing to give proper weight to the certificates and completed by the applicant which relate directly to adult environments. 1. Failure of the Office of the Children's Guardian to recognise the distinguished career: 1. the applicant had a distinguished career over 18 years 2. the applicant is a JP and a member of a community organisation. The applicant states that "to characterise the applicant is a risk to the safety to children is a penalty in these circumstances and is a disproportionate response to the material and information before the OCG."(sic)
An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
The Tribunal has been assisted by the submissions of the parties.
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].

The evidence relied upon in the hearing

The applicant relied upon the following documentary material: 1. Affidavit of the applicant dated 15 December 2014 annexing numerous documents including transcript of the jury trial which took five days - Exhibit A1; 2. Psychological Report of Josefina Hofman- Exhibit A2; 3. Transcription of text messages dated 2 May 2008 until 21 May 2008-Exhibit A3; 4. Applicant's outline of submissions dated 20 April 2015-Exhibit A4.
The respondent relied upon the following documentary material: 1. Bundle 1 filed 29 October 2014- Exhibit R1; 2. Bundle 2 filed 29 October 2014- Exhibit R2; 3. Submissions of the respondent dated 19 April 2015- Exhibit R3.
There were some objections taken to parts of the evidence sought to be relied upon in the written material. The Tribunal ruled on those objections prior to commencement of the hearing. For example, a document with some editorial comment, Annexure G to the applicant's affidavit, was permitted to be read provided the editorial comment was removed or not read. Those comments were provided by someone who was not going to be called as a witness and their opinion on those matters is largely irrelevant. Similarly, some of the evidence sought to be relied upon by the applicant went to the processes involved by the Children's Guardian and information that was placed before the Children's Guardian. The Tribunal formed the view that the applicant could make submissions about those matters, but essentially because of the nature of these proceedings, information placed before the Tribunal determines whether the previous decision is the correct and preferable decision at this point in time with all the evidence that is led by both parties before the Tribunal. The applicant gave oral evidence and was cross-examined on 12 and 13 March 2015. A witness in support of the applicant gave oral evidence and was cross-examined on 13 March 2015. The Tribunal has been provided with and reviewed a transcript of the evidence on both 12 and 13 March 2015.
On the adjourned hearing date of 20 April 2015 the Tribunal heard evidence from a registered psychologist, Josefina Hofman, by telephone. The evidence she gave confirmed that her assessment was not a risk assessment and did not utilise any of the generally recognised risk assessment tools such as the Static-99. Instead, the report focused upon the applicant's mental health functioning and stability. The applicant had undergone some useful therapy and counselling primarily addressed to his anxiety symptoms.
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 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 decision in BJB v NSW Office of the Children's Guardian (No 2) and the paragraph quoted from that decision 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 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 follows 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 presently constituted Tribunal and are not currently controversial. These matters were referred to recently by the Tribunal in BPX v Children's Guardian [2015] NSWCATAD 114. The applicable provisions are referred to now in this decision so that the legislative basis of this decision is identified for the parties in this matter.
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 matter referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian is the matter referred to in clause 1(b) which is as follows: "(1) Proceedings have been commenced against a person: (a) for an offence specified in clause 1 of Schedule 2, if the offence was committed as a child (whatever the outcome of the proceedings), or (b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person."
The offences with which the applicant was charged are referred to within clause 1 of Schedule 2 of the Act. It is therefore properly established that the risk assessment was appropriately triggered. The Children's Guardian also relied upon clause 2 (a) of Schedule 1 of the Act as a basis for the assessment. That subclause refers to a finding of sexual misconduct by a reporting body committed against a child or in the presence of child, including the grooming of a child. This referred to a report by the applicant's employer. It is therefore open to find that the risk assessment was appropriately triggered.
The hearing before the Tribunal is pursuant to an application under section 27 (1) 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.
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 at [26]-[29].
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, although that matter decided on an issue of procedural fairness and related to section 28 of the Act proceedings, the principles otherwise referred to by His Honour are to be given appropriate authority by this Tribunal. 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 is supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [4], [27], and [33] at least in relation to section 28 of the Act applications. It is useful to now set out the reasoning behind the Tribunal's determination in relation to section 27 applications 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; BKE v Office of the Children's Guardian at [33]. 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 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] 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.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 provide that 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. The applicant is not treated as a disqualified person, but is subject to risk assessment under the current Act due to the provisions of schedule 1. 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.
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. It has not been necessary in this matter to decide whether these aspects are part of the Tribunal's functions and powers.

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 will be 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 relevant evidence in this matter is also placed under subheadings within the required considerations under the 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 primary matter raised against the applicant gave rise to the two charges of aggravated indecent assault. That matter allegedly occurred on 5 November 2007 when the applicant attended a high school as part of his employment with the Police force to see a 14-year-old female student at her request. It was alleged that he closed the door to the room and that they both sat either side of a round table. The applicant is alleged to have leant over to the victim and unzipped her jacket all the way undone. While he did this he is alleged to have touched the jacket with his hand which then brushed against the victim's right breast. The victim attempted to zip the jacket back up, but the applicant held the bottom of the jacket. The victim then managed to zip up the jacket. The applicant then is alleged to have held the hem of her dress which was halfway up her thigh and moved the hem of her dress up and down her leg with his fingers touching her upper thigh. The victim is reported to have stated that she felt "pretty dirty" when this was occurring. The applicant stopped his actions and is alleged to have asked the victim the colour of her undies and bra.
The victim cancelled a previously arranged meeting with the applicant for 8 November 2007, by sending a text on 6 November 2007. The victim cancelled this appointment because she was upset with the actions of the applicant the previous day. The applicant sent a text message to the victim stating "obviously the answer is no u don't want 2 so I will leave you alone then."
A further text message from the applicant's work mobile phone to the mobile phone of the victim states: "I asked u yesterday would you want me to touch u but it's not going 2 happen." A further text message was sent by the applicant which stated: "things r complicated for u at the moment so u need breathing space so I will leave u alone 2 give u space so I won't be touching u and stuff." Another text message sent from the applicant's work mobile phone to the victim's phone on 6 November 2007 stated: "also don't worry about the photo."
The other two charges against the applicant were that he used a carriage service to "groom" a person under the age 16: section 474.27 of the Criminal Code, Criminal Code Act 1995 (Cth). The offence created by that provision is as follows: "474.27 Using a carriage service to "groom" persons under 16 years of age (1) A person (the sender ) commits an offence if: (a) the sender uses a carriage service to transmit a communication to another person (the recipient ); and (c) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and (d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and (e) the sender is at least 18 years of age. Penalty: Imprisonment for 12 years. (2) A person (the sender ) commits an offence if: (a) the sender uses a carriage service to transmit a communication to another person (the recipient ); and (c) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person (the participant ); and (d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and (e) the participant is someone who is, or who the sender believes to be, at least 18 years of age. Penalty: Imprisonment for 12 years. (3) A person (the sender ) commits an offence if: (a) the sender uses a carriage service to transmit a communication to another person (the recipient ); and (c) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person; and (d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and (e) the other person referred to in paragraph (c) is someone who is, or who the sender believes to be, under 18 years of age; and (f) the sender intends that the sexual activity referred to in paragraph (c) will take place in the presence of: (i) the sender; or (ii) another person (the participant ) who is, or who the sender believes to be, at least 18 years of age. Penalty: Imprisonment for 15 years."
The victim approached her year 8 advisor and informed her of the actions of the applicant the previous day. The matter was reported to the school Principal who made contact with the applicant and informed him of the allegations. A referral was made to the Local Area Command and the Joint Investigative Response Team (JIRT).
When the victim was interviewed about this matter she reported that the applicant had asked her for a photo of her in a miniskirt with her hair down. This has been presumed to be the reference to a photo in the applicant's text. The applicant's mobile telephone was seized and examined. The applicant allegedly stated "once you send text message on phone they delete and don't stay there." The applicant also is alleged to have said "you will find some inappropriate texts on my phone that were sent to [the victim] but they were meant for my wife and I pushed the wrong number.": Exhibit R1 page 301.
It was alleged that there were over 400 text messages that had been exchanged between the victim and the applicant between 1 October 2007 and 7 November 2007. These texts were considered to be sexual in nature whether by innuendo or otherwise. The applicant declined to participate in an interview in respect of the allegations, consistent with his legal rights. The DPP considered there was sufficient evidence to commence criminal proceedings.
The Commissioner of Police on 22 December 2008 dismissed the applicant from the Police service. In the findings recorded in a report prepared by the Commissioner it was stated: "I am extremely concerned that your conduct in relation (sic) [the victim] it is extremely serious, inappropriate and predatory in nature. I consider this behaviour to be completely unacceptable for anyone, let alone a police officer who needs to inspire the trust and confidence of the community… I therefore remove you from your position as a police officer."
On 1 March 2010 a jury found the applicant not guilty of the charges which were brought against him. The judge directed the jury to find that the evidence was insufficient to establish that the applicant had requested the victim send to him the photo referred to above. The jury found the applicant not guilty of the second and third indictments. The DPP submitted to the jury that they should find the applicant not guilty in respect of the final charge due to the fact that the victim was confused as to who may have suggested to her to "snuggle" as she had been engaging in text messaging with another person. It was submitted to the jury by the prosecution that there was a reasonable doubt in relation to this indictment. While the evidence must meet the higher standard of proof in a criminal trial, the existence of some reasonable doubt(s) does not mean that the standard of proof on the balance of probabilities has not been achieved by the same evidence.
Included in the material at Exhibit R1, pages 213-216, is a note written by the victim, signed by her and dated 6 November 2007. The note was written at the request of the victim's school staff. In that note the victim records that "things started to get weird" at the police station when the applicant closed the blinds. The applicant took her to school. While they were in the car victim alleged that the applicant tickled her and she told him to stop. It appears that she is then talking about events which occurred over the next period of time. Subsequently they sent texts to each other. In one of those texts the victim said she said words to the effect: "I want someone to snuggle up to and someone who [? Believes/? Loves (not clearly legible but could be either word written over or partly crossed out in apparently the same hand)] me." The applicant is alleged to have responded: "I would love to snuggle up to you." This is apparently the text about which the prosecution made submissions to the jury that there was a reasonable doubt. The actual text was not in evidence, only the victim's recollection of it. Then the victim asked to see the applicant at school which is when the incident alleged to have occurred on 5 November 2007 took place. The victim then wrote that she sent a text to the applicant saying she could not make it on Thursday to which he responded "no that's fine", and then she wrote "are you angry with me he said no." Then the victim makes reference to the other texts from the applicant which already have been referred to under this heading. The statement taken by the police from the teacher who was present confirms that the victim wrote the messages on the paper directly from her mobile phone. There is then a handwritten record of texts on the victim's phone from the applicant as recorded by a teacher. Verbatim copies of the texts are contained within the material exhibited to the Tribunal, but are not repeated here.
The applicant spoke with an Acting Inspector on 6 November 2007 about the allegations being made. Included in that conversation the applicant is alleged to have said: "I have to admit I had a number of personal conversations with this student and hope it would not affect the investigation." Exhibit R1 page 255.
An interim Apprehended Personal Violence Order was made by the Local Court at the instigation of the Police for the benefit of the victim protecting her from the applicant, on 21 January 2008: Exhibit R1 page 228. It is presumed there is no final order because the criminal charges were later dismissed.
The secondary matter raised against the applicant in the assessment of risk by the Children's Guardian relates to an alleged inappropriate relationship with a 16-year-old female. It was alleged on 6 June 2008 that the applicant had been involved in text message exchanges with the 16-year-old student totalling 207 messages over a six-week period. The applicant stated that the young girl is a friend who he met a few years earlier whilst fulfilling his role as a School Liaison Officer with the Police service. The applicant was in contact with her, he said, to assist her with her depression and some of the messages related to an upcoming court matter in which the girl was a witness. The applicant stated that he had coffee with the girl in the local town and sometimes he saw her at her place of employment in a large department store. The Local Area Command made a finding against the applicant of an inappropriate relationship between the applicant and the girl. The investigation found similar behavioural traits to the criminal charges which the applicant was then facing, but of which he was found not guilty, because of her age and the applicant's regular contact with her through 207 text messages over a six week period. The applicant also met with the girl on his own with no other person present. The applicant met the complainant during his role as a School Liaison Officer, representing the Police service. It was stated that the applicant did not appear to believe that it was inappropriate to be having such close contact with a young girl whom he met through his role as a School Liaison Officer, and while on sick leave due to the charges he was facing relation to the other primary matter referred to under this heading. The Tribunal accepts those findings as rational and accurate. On the balance of probabilities the events which occurred showed an inappropriate relationship which was inappropriately maintained pending the determination of the criminal matter. This shows a lack of insight by the applicant.
There are two other matters which were referred to in the Children's Guardian risk assessment. The first of these related to an incident on 1 February 2011. It was alleged that the applicant had followed a 16-year-old daughter of a former police officer colleague through a shopping centre. The father of the girl considered the applicant's behaviour to be predatory and intimidating. This matter does not appear to be substantiated. The second of the matters related to an allegation of improper conduct against a 15-year-old female student in March 2005 which was not substantiated. The grandmother of the 15-year-old told a school staff member that the applicant "attempted to get into" the child's "pants". The mother of the 15-year-old made similar allegations. When the child was interviewed by JIRT she denied making a complaint about the applicant. The Local Area Command did not investigate the matter further and closed their file. These two matters can be safely disregarded by the Tribunal in an assessment of risk, because in reality they are no more than mere allegations.
The applicant acknowledges that he has had access to the materials detailing all these matters, which subsequently became Exhibit R1, since 31 October 2014 and then later Exhibit R2: see Exhibit A4 page 15 par [12]. Indeed, he has responded to these matters in submissions.
In his affidavit Exhibit A1, the applicant states at [71] that viewed objectively the high volume of texts between him and two adolescent females is grooming. However, the applicant denies grooming the two school students. The applicant denies that he "groomed any child for sexual gratification or for any other purpose other than to 'rescue'" the children from suicidal actions: at [70]. The applicant says that he ignored expressions such as "Love you" and the sexual content of the victim's messaging: [68]. The applicant acknowledges that he was overzealous.
The applicant denies in his affidavit at [64] that he committed any act of indecent assault by touching the victim in the primary matter. The applicant states that although he was on his own with the victim in the room and the door was closed but unlocked, his actions were visible to any person who chose to look through the window.
The applicant now acknowledges in his affidavit at [79] that the secondary matter involving numerous texts between himself and that 16 year old girl, including also social meetings on their own, was excessive and inappropriate behaviour between an adult and a child. Again, however, the applicant denies any sexual grooming.
It can therefore be safely stated that the matters which have been alleged against the applicant are serious if it is determined that they occurred. The Tribunal in considering these matters has determined on the basis of the evidence referred to in and for the reasons which follow, that it is more likely than not that the applicant engaged in sexual grooming of the two main victims, and that it is on the balance of probabilities more likely than not that he engaged in indecent assaults on 5 November 2007.

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

There is no index offence. The applicant has not been convicted of any criminal offence arising from his conduct in the matters which triggered the assessment. The conduct occurred in 2007 and 2008. That is, the period of time since those matters is eight years and seven years respectively.
The conduct of the applicant since those matters were investigated has not resulted in any adverse findings.
The applicant has undertaken professional counselling and treatment with a psychologist. The nature of that counselling and treatment is discussed elsewhere in these reasons.

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

The applicant was born in March 1970. The applicant was aged 37 at the time of the complaint which led to the charges against him. The applicant was 38 and the time the secondary matter was raised.

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 first victim was aged 14 because she was born in September 1993. The applicant was aware that she was aged 14 and that she was vulnerable to exploitation. The applicant conceded in cross-examination that she was vulnerable to exploitation and he was concerned about her suicidality and maintaining a line of communication. The applicant conceded that it was an error of judgment to behave in the way that he did. The applicant stated that he wouldn't do it that way now. The applicant conceded that he didn't have formal counselling training or qualifications and with the benefit of hindsight can see what he did wasn't appropriate.
The second victim of the allegation made on 6 June 2008, was a 16-year-old student also known to the first victim.
The children with whom the applicant was communicating were vulnerable due to their own developmental and emotional issues, and because of the position occupied by the applicant of significant trust and authority.

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

There was a significant difference in age between the applicant and the schoolgirls of 14 and 16 years of 23 and 22 years. The applicant was aged 37 at the time of the incident which led to charges. The applicant was 38 of time of the secondary matter referred to in these reasons.
There was a relationship of trust between the applicant and both children. That relationship was formal due to the nature of the applicant's position as School Liaison Officer and informal due to the applicant's failure to keep boundaries concerning those relationships.

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

The applicant knew that the victims in both matters were children.

The Person's present age

The applicant is currently aged 45.

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

The applicant does not have a criminal record.
Since the matters which led to criminal charges and internal investigations by the Police service, the applicant has not attracted any adverse attention.
The applicant is a family man who has been married for 19 years, with two children, living in a rural town for over 20 years.
The applicant is involved in at least two community organisations.
The applicant has worked as a personal trainer and fitness instructor. The applicant is currently obtaining tertiary education in that area. The applicant is a casual teacher at an adult community college teaching the use of computer programs such as Word, Excel and Outlook. The applicant is a Justice of the Peace. The applicant has recently worked as a Sheriff's officer.
The applicant states that he can no longer work in the fitness industry at local gyms due to the lack of a working with children clearance.

Likelihood of any repetition by the person of the conduct and the impact on children of any such repetition

The applicant seeks that the Tribunal depart from the Children's Guardian assessment of risk and says that the likelihood of a repetition of the events which led to the charges against him and his termination, whether by dismissal or resignation, from his prior employment with the Police service is remote.
The applicant acknowledges in submissions that he crossed professional boundaries, but says that he will not place himself or a child in the position he placed the two teenage girls with whom he conducted extensive text conversations. The applicant says that he has learned that the methods he adopted were not appropriate. The applicant acknowledges that he was not a qualified counsellor or mental health worker and he approached what he considered to be serious mental health issues without appropriate knowledge. These are positive steps in the right direction, if indeed it is an accurate statement of intent. The respondent submitted that the language used by the applicant in his affidavit and submissions doesn't support the claimed insights and changes in behaviour. There is some force in this submission and it is considered further in these reasons.
The applicant was discharged from the Police service in 2008: Exhibit A1 at [82]. This was after some investigation of the applicant's behaviour by his employer. The applicant annexed to his affidavit a copy of a Deed of Release to which objection was properly taken by the respondent. There is a clause of that document which states that the document is not be disclosed by the applicant. A Deed of Release dated 22 March 2011 is contained In Exhibit R2 pages 781-789 in the material relied upon by the respondent: it is properly disclosed in that context. In any event, a statement of service from the Police service indicates that the applicant was employed until 22 December 2008: Exhibit R2 page 791. The material in Exhibit R2 was obtained pursuant to the investigative powers of the Children's Guardian under the Act. It is apparent that the applicant successfully obtained agreement from the Commissioner, after commencing legal proceedings, to revoke the discharge order and permit the applicant to resign from the Police service effective from the same date. The applicant had a distinguished career over 18 years prior to leaving the Police service, which is a fact acknowledged by the Tribunal.
The applicant stated "once you send text message on phone they delete and don't stay there." The applicant also said "you will find some inappropriate texts on my phone that were sent to [the victim] but they were meant for my wife and I pushed the wrong number.": Exhibit R1 page 301. These explanations try to deflect attention from the fact that many of the text messages sent by the applicant had not been saved. Instead, mainly the replies of the victims are reproduced. This is particularly relevant in relation to the primary matter in 2007. The applicant attempts to deflect the sexualised content of those which were not deleted by the comment that he intended to send those messages to his wife.
The investigation by his employer identified that forensic examination of the applicant's mobile phone was unable to recover the content of the applicant's text messages. The applicant also had a conversation with a Sergeant on 12 November 2007 in which the applicant said: "I am thinking about resigning, I have been in the Police for 18 years and I should just get a slap on the wrist and be allowed to continue on with my SLP duties… The text messages are the things that will bring me unstuck, I have spoke (sic) to a solicitor and he told me not to say anything during an interview. I have prepared a statement and have letters from [the victim] to give to you guys."
The applicant also stated on 12 October 2007 in an email that: "she has been sending me SMS messages and I have responded to them, but without any connatations (sic) at all… I will only speak with her in the presence of the Principal or Deputy Principal."
The applicant's employer determined that regardless of the outcome of the criminal proceedings the applicant had engaged in inappropriate and sexual text message communications with a child which brought discredit upon the Police service. It was particularly commented that the applicant should have exercised far greater caution in his actions towards the schoolgirl: Exhibit R1, page 22. The applicant appears to acknowledge that he should have done things differently in his email communication of 12 October 2007. The applicant says essentially the same things to the Tribunal at this time.
The applicant reported that he thought the victim had a "crush" on him on 12 October 2007. The contents of the messages which were extracted on 2 November 2007, and the complainant victim's own admissions as to mobile texting and the applicant's own phone log, indicate that there was no inadvertent behaviour, and on the balance of probabilities this constituted grooming behaviour.
The meeting between the applicant and the schoolgirl on 5 November 2007 with no other person present in the room, despite the previous email statement on 12 October 2007, was either extremely reckless, or deliberate behaviour. It is highly unlikely to have been reckless behaviour given previous comments by the applicant to his superior officers. The applicant also saw the schoolgirl on his own in an office at the police station and drove her on his own in a police marked car to school on 30 October 2007: Exhibit R1, page 360; Exhibit A1, Transcript 26/02/10, page 7.
The applicant is alleged by the schoolgirl to have hugged her and it is alleged he aggressively told her to sit on his lap in the office at the police station. In the trial of the charges the schoolgirl was cross-examined and denied that she was mistaken, disagreed with the suggestion that the applicant never hugged her, and denied that she was lying about those allegations: Exhibit A1, Transcript 26/02/10, page 8. The applicant is alleged to have closed the blinds in that office: Exhibit R1 page 384. The evidence was that there were blinds in that office which were able to be opened and closed: Exhibit A1, Transcript 26/02/10, page 83.
On the way the school the applicant tickled the girl in the ribs. The applicant had previously hugged the victim at the school and tickled her in the ribs at school: Exhibit R1 pages 361-364; Exhibit A1, Transcript 26/02/10, page 7. The schoolgirl was also cross-examined about the tickling and she disagreed with the proposition that the applicant did not in any way tickle her: Exhibit A1, Transcript 26/02/10, page 12. The victim was also cross-examined about the alleged indecent assault where it was suggested to her that she was lying and she disagreed: Exhibit A1, Transcript 26/02/10, page 55. The victim was quite firm in her answers and rejected any suggestion that she was making it up. In the criminal trial it would appear that her credibility was affected by a failure to earlier disclose a relationship with an older man (not the applicant) at the time of the alleged incidents. The fact that she was having this relationship highlights the victim's vulnerability to exploitation because the victim required an adult male role model in her life, about which the applicant was acutely aware: see Transcript 12/3/15, page 36.
The evidence in the criminal trial did not support a finding of guilt beyond a reasonable doubt in relation to the charges. The victim also made some concessions in her evidence which permitted a reasonable doubt to be entertained by the jury in relation to the charges which did not relate to the indecent assaults: Exhibit A1, Transcript 01/03/10, pages 121-122. The Crown relied essentially only upon the victim's statements in relation to the indecent assault allegations. The jury's assessment of her credibility in relation to other matters was able to be taken into account by the jury in the assessment of the evidence of the victim in relation to the indecent assaults. The jury would have been left with the allegations made by the victim of indecent assaults and a denial by the applicant in the criminal trial. The jury found, as is clear from the trial judge's directions and the argument preceding those directions, that they could not make a finding of guilt beyond reasonable doubt based solely on the victim's evidence.
The applicant did not give evidence in the criminal trial. The matter proceeded to the verdicts before the applicant was given that opportunity. However, there is minimal evidence from the applicant to counterbalance the victim's evidence and her denials that she had been telling lies. The applicant has given evidence in these proceedings. The evidence he gave corroborated the grooming by texting. The evidence referred to in the preceding paragraphs is corroborative of the victim's allegations concerning the indecent assaults. The text messages are the things that have brought the applicant "unstuck". The behaviour is extremely serious, inappropriate and predatory in nature. A text message from the applicant's work mobile phone to the mobile phone of the victim after the alleged incident states: "I asked u yesterday would you want me to touch u but it's not going 2 happen." A further text message was sent by the applicant which stated: "things r complicated for u at the moment so u need breathing space so I will leave u alone 2 give u space so I won't be touching u and stuff."
On the balance of probabilities, having regard to the serious nature of the allegations, having regard to all of the evidence referred to previously in these reasons, the Tribunal is comfortably satisfied in all circumstances that it is more likely than not that inappropriate touching occurred as alleged. That is, on the civil standard it is established that there were indecent assaults.
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].

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

The applicant has maintained a position of denial of the serious matters raised against him.
To a large extent the applicant has relied upon his acquittal in the criminal proceedings to justify a finding that he is not a risk to children. These proceedings are not punitive, but protective of children's interests. The focus is not upon finding a guilty party, but acting protectively in relation to conduct which will harm children. The civil standard of proof applies when considering the evidence before the Tribunal. The criminal standard of proof is a more exacting standard and that is why discrepancies in the evidence before a criminal jury may have greater significance and may lead to an acquittal, than an assessment of the same evidence on the civil standard which may lead to a finding that something did occur.
The psychological report completed by Josefina Hofman is referred to earlier in these reasons. The applicant told Ms Hofman that her mental health assessment report would be used to support his current matter. The applicant was told by Ms Hofman that the assessment report would assess his current mental health functioning and was not a report which could determine a clearance or a working with children check. The applicant agreed to this: Exhibit A2 pages 2, 3. Ms Hofman observed that the applicant appeared "significantly affected by the allegations, as exhibited by his detailed recollection and historical timeline that he openly discussed." The applicant stated during his interview with Ms Hofman that he believes the allegations were "unsubstantiated": ibid.
The applicant reported to Ms Hofman that he has a stable relationship with his current partner with whom he has been married for 19 years. A formal diagnosis of anxiety was made in 2007 by the applicant's GP and psychiatrist: Exhibit A2 page 4. There is no recent psychiatric report provided to the Tribunal, however the psychiatrist is one of the referees of the applicant. The psychologist administered a number of assessment tools. Nothing of any great note arose from those assessments.
The applicant has undertaken a number of educational courses and provided evidence of his completion of those programs to a satisfactory level.
The applicant however has not addressed the serious and predatory nature of his behaviour in any of the courses or psychological support he has received. The concentration in his language and thought processes upon the effect of the incidents on his personal life and a denial of his culpability gives the Tribunal little confidence that he can carry into effect his good intentions never to behave inappropriately again. Remorse, whilst a good start to help ameliorate risk, on its own is insufficient to satisfactorily address a real and appreciable risk to children. It is doubtful that there is true remorse for his behaviour on the part of the applicant while ever the full extent of it remains unacknowledged.
The applicant has provided extensive information which assisted the Tribunal to make a determination in this matter. The applicant provided statutory declarations and references completed by a number of people of standing in the community. The Tribunal has had regard to those glowing references as to the applicant's good character. It could not be suggested that the applicant has failed in his duty to provide information to the Tribunal.

Any other matters that the Children's Guardian considers necessary

There was extensive material filed on behalf Children's Guardian and it would appear there are no other matters which the Children's Guardian considers necessary.

Other matters to be addressed by the Tribunal

As previously stated the Tribunal is to decide in these proceedings 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]. In the matter currently before the Tribunal additional evidence was provided to the Tribunal which was not before the Children's Guardian.
The applicant has raised in his application for review a number of issues which are not strictly relevant to the determination that is before the Tribunal because they go to the issue of correctness as a matter of law of the decision made by the Children's Guardian. It is plain that 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.
However, it is necessary to deal with those issues raised by the applicant if only because the applicant may harbour a lingering doubt that those issues were not considered and properly determined by the Tribunal on this application.
The applicant alleges that there was a denial of natural justice, that relevant considerations were not taken into account, that irrelevant considerations were taken into account, and that the decision was plainly unreasonable: see par [6] herein.
The Tribunal has provided to the applicant the opportunity to address all of the issues and material relied upon by the Children's Guardian and to the extent that the applicant may have been denied natural justice prior to the decision of the Children's Guardian, with respect, it is the Tribunal's process in making this decision which has provided the forum for those natural justice issues to be redressed if they were previously deficient (which alleged deficiency is not a conclusion for the Tribunal to make and the Tribunal does not make that conclusion). The Children's Guardian has a discretion in relation to the matters to be taken into account in an assessment of risk: section 15(4) of the Act. The Tribunal has no such discretion by reason of section 30(1) of the Act: see par [51] herein; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children's Guardian [2015] NSWSC 523.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, Mason J said in respect of the ground of taking into account irrelevant considerations (at 40): "where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard" (citations omitted)
The applicant alleges that the Children's Guardian took into account irrelevant considerations. The Tribunal does not agree.
The applicant contends that the Children's Guardian did not take into account relevant considerations. Mason J discussed this type of error of law in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (above) at 39: "The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision".
In Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248, the Full Federal Court said of a statutory obligation to "have regard" to certain matters (at [59]): "[A] decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v FCT (2002) 123 FCR 499 at [62] (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case."
A careful reading of the risk assessment contained within Exhibit R1 does not identify the type of errors the applicant has alleged.
The applicant contends that the decision of the Children's Guardian is excessive, disproportionate, unreasonable and punitive. The applicant states that "to characterise the applicant is a risk to the safety to children is a penalty in these circumstances and is a disproportionate response to the material and information before the OCG."(sic) The applicant therefore is raising an issue as to the reasonableness of the decision made originally by the Children's Guardian.
These submissions and the references to the outcome or result being a "disproportionate response" evoke the language of "unreasonableness" as summarised by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at (at 233-4): "Once that question [of whether the authority has taken into account matters they ought, and not taken into account matters they ought not] is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case... I think the court can interfere."
Unreasonableness is not developed in the submissions of the applicant. There is reference to the determination of the Children's Guardian as constituting "a penalty" that is why the decision is "disproportionate": Exhibit A4 page 18 [14].
Unreasonableness is not addressed in the submissions of the Children's Guardian. The Children's Guardian simply submits to this Tribunal that the applicant does pose a real and appreciable risk of harm to children. Whether that determination is seen by the applicant as unreasonable or disproportionate or not, is not the test.
It is clear, however, that the applicant has not satisfied the high threshold of Wednesbury unreasonableness (so unreasonable that no reasonable authority could ever have come to it). It was open to the Children's Guardian on the evidence before her to refuse the application. This is particularly so when regard is had to the whole of the evidence which has been referred to in these reasons.
The applicant has failed to establish any error of law of the Wednesbury unreasonableness kind on the part of the Children's Guardian.
It is repeated, however, that there is no requirement upon the applicant to show that the original decision maker's decision was wrong. The preceding discussion under this subheading addresses the matters raised by the applicant for the sake of completeness.

Determination and conclusion

The applicant's conduct affected vulnerable young females and was serious. The applicant attempted to justify his behaviour on the basis that he wished to prevent suicidal threats being carried out by the students. The Tribunal does not accept that the applicant has shown any real insight into the risk of psychological and emotional harm to which the victims were exposed by his behaviour. The applicant acknowledged that he did not have the skills or training to effectively prevent the suicidal threats from becoming actual. The applicant did not adopt a liaison role with those qualified people better suited to deal with those issues.
For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children. The behaviour in the past occurred in circumstances where the applicant was held in a position of trust. The applicant has abused that position of trust.
It is not clear to the Tribunal that the applicant would be capable of behaving differently in the same circumstances, given that he was aware prior to the allegations being made that he should have modified his behaviour, and a repeat of the inappropriate volume of texting which failed to keep appropriate boundaries occurred very shortly after the primary matter. The applicant's oral evidence over two days did not impress upon the Tribunal any real change or insight has occurred with the applicant.
The applicant inappropriately repeated his excessive texting behaviour and maintained an inappropriate relationship with the schoolgirl in the secondary matter despite the fact that she was a witness in relation to the applicant's criminal charges. It was described as "predatory" by his employer.
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, as previously described in this decision. Even if conditions were imposed there is no guarantee that they would mitigate the risks posed by the applicant.
The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a real and appreciable 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.
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 is therefore upheld, but that affirmation is based upon more evidence than that which was relied upon by the Children's Guardian.
The order of the Tribunal therefore is: 1. The decision of the Children's Guardian dated 28 August 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 2. The application for review of the decision of the Children's Guardian filed 24 September 2014 is otherwise refused and dismissed 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

Amendments 01 July 2015 - corrected typo errors in paragraph 64 and 113 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: 01 July 2015

Criminal Code, Criminal Code Act 1995(Cth)

BMU v Children's Guardian

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