CEY v Children's Guardian

Relevant WWC legislative scheme

1. The WWC Act came into force on 15 June 2013. The objects of the Act are set out in section 3 as follows: "3 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."
2. Section 4 of the Act provides that the "safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration" in the operation of the Act.
3. The word "children" is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning.
4. Subsection 8(1) of the Act prohibits a person from engaging in "child-related work", unless: (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
5. Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
6. Section 6 and 7 of the WWC Act broadly defines the term "child-related work".
7. Part 3 of the WWC Act makes provision for making applications for a clearance and how the respondent is to determine them. Section 18 in this Part prescribes how the respondent is to determine an application for a clearance. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in schedule 2 of the WWC Act, or that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a "disqualified person" and the respondent must refuse that persons' application for a clearance. Such persons have a right to make an application to the Tribunal for an enabling order: see WWC Act, section 28. Where an application of this kind is made, subsection 28(7) of that Act provides that the applicant is presumed to pose a risk to the safety of children unless he/she establishes the contrary.
8. The applicant is not a "disqualified person." However, as we have explained above, because the applicant was charged with an offence falling within clause 1 of schedule 2 of the WWC Act, he was subject to an "assessment requirement": WWC Act, section 14 and clause 1 of Schedule 1. Subsection 15(1) of the WWC Act requires the respondent to conduct that assessment and subsection 15(4) sets out the matters the respondent may have regard to in conducting that assessment.
9. Subsection 18(2) of the WWC Act provides that the respondent must grant a clearance to a person who is subject to an assessment unless the respondent is satisfied the person poses a risk to the safety of children.
10. Part 4 of the WWC Act deals with reviews and appeals from decisions of the respondent in regard to an application for a clearance. As we have mentioned at the commencement of these reasons for decision, the applicant's application falls under subsection 27(1) of the WWC Act. Subsection 27(4), provides that in review proceedings an applicant must fully disclose to the Tribunal any matters relevant to his/her application.
11. Subsection 30 (1) of the WWC Act sets out the factors the Tribunal must consider in determining an application made under section 27 or 28 of the Act. That subsection relevantly provides: 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 … any matters that caused a refusal of a clearance …, (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 … 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 … 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.
12. The above matters are similar to those the respondent may have regard to when undertaking an assessment under section 15 of the WWC Act.
13. Finally, the Tribunal cannot make an order granting a clearance that is subject to conditions. A clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].

Evidence before the Tribunal

1. In support of his application the applicant relied on: 1. an affidavit affirmed by him, on 2 February 2016; 2. a psychological risk assessment report of Dr Stephen Allnutt, forensic psychiatrist, dated 21 January 2016; and 3. correspondence between the applicant's solicitor and his current and former employers.
2. The respondent relied on: 1. the section 58 documents, which included a copy of the respondent's risk assessment report, response received from the Office of the Director of Public Prosecutions (NSW), the Youth Refuge where the applicant had worked, response received from the NSW Police Sex Crime Squad, response received from the Local Court and correspondent with the applicant and his solicitor; 2. further documents received from the Office of the Director of Public Prosecutions, which included statements prepared by police concerning the applicant's 1996 alleged offence; 3. an email, sent on 27 January 2016, from the respondent's solicitor to counsel for the applicant confirming the respondent's consent to the applicant's solicitor contacting the applicant's previous employers and a letter from the NSW Office of the Director of Public Prosecutions advising that the Office did not proceed with the 1996 charge because "there was no reasonable prospect of a conviction due to discrepancies with the complainant's evidence"; 4. an email response from a former employer of the applicant (i.e. from April 2001 to October 2003) to the respondent, sent on 16 February 2016, stating that the applicant had been employed as a full time youth co-ordinator, he had a working with children check clearance and there "were no records of any disciplinary proceedings on his file."
3. The applicant and Dr Allnutt both gave oral evidence at the hearing and they were cross-examined by counsel for the respondent.
4. Both parties also provided detailed written submissions, which we have dealt with below.

Consideration

1. Before we deal with the evidence and the matters we are required to have regard to, we note the word "risk" was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word "risk" as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children."
2. The Tribunal has accepted the word "risk" in the WWC Act should be given the same meaning.
3. It is well accepted that in administrative review proceedings, neither party bears a burden of proof in establishing that the decision was, or was not, "the correct and preferable" decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]; BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]: "… [when] either party to such an application [i.e. a review application] raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge."
4. It has also been accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23].
5. In BKE (supra) at [30], His Honour Justice Beech-Jones said, where there are allegations of sexual abuse by an applicant for a clearance, significant guidance as to the approach to be adopted when considering risk can be derived from the High Court's decision in M v M [1988] HCA 68; (1988) 166 CLR 69. His Honour went on to say at [33]: "... [it] may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. 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."
6. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.

(a) Seriousness of the matters that caused a refusal of the applicant's application for a clearance

1. The first matter for consideration in subs 30(1) of the WWC Act is the seriousness of the matters that caused the refusal of the applicant's application for a clearance. In this case these matters were the 1996 charge of aggravated sexual assault and the 2006 concerns raised by staff while the applicant was working for a youth refuge.
2. The 1996 charge - The applicant was charged in early November 1996 with an offence under section 61J(1) of the Crimes Act 1900. The offence was alleged to have occurred in June 1996 and the charge was to the effect that the applicant had sexual intercourse with the victim, without her consent and in circumstances of aggravation knowing that she was not consenting thereto. The offence was alleged to have occurred in the early hours of the morning of the day in question. It was a Saturday morning, the victim and her friend had been out drinking the night before. The victim and her friend started drinking that evening, at a local RSL club, from about 8.30pm. When the club closed at about 1:00am the victim and her friend caught a cab and went to an Inn. They got there about 1:30am and continued to have more drinks. At about 3:00am the victim, her friend and other friends went to another establishment at Parramatta. In a statement to police, the victim's friend said that sometime after 4:00am that morning the victim was outside arguing with the bouncers at the establishment because they would not let her back into the establishment. The friend said there were five bouncers and the victim was saying "Let me back in". The victim's friend said the victim looked very drunk, she was very loud, her speech was slurred and she was falling over her own feet.
3. On the same evening, the applicant was working as a security guard outside the Parramatta establishment. He was working together with Mr A. The applicant and Mr A were responsible for providing mobile security at a number of venues including the Parramatta establishment.
4. The victim's friend, in her statement said one of the bouncers had agreed to take the victim home. She said she saw the victim walk down the alley and she said the victim was stumbling and she looked really drunk. She said this was about 4:30am.
5. In her first statement to police, made two days after the alleged incident, the victim said she recollected standing outside on the footpath of the Parramatta establishment when her friend threw water over her. She said the bouncers were all around her. She said she recalled being in the backseat of a car and remembered grabbing the seat in front of her. She said she was disoriented and did not know who she was with. She said she remembers looking around outside the car and saw tall buildings around her. She said she remembered sitting on the backseat with her head against the rear passenger door with her feet facing the rear driver's side door. She said the rear driver's side door was open and she saw a male person standing at the door leaning towards her. She said the male person was laughing and she heard another male voice coming from outside the car also laughing. She said she remembered moving her hands around in front of her and shouting: "Leave me alone, go away" over and over again. She said she remembered someone trying to grab her hands and the male voice laughing. She remembered hitting her hand against the back of the front passenger seat and the back seat to stop the person who was trying to grab her. She said the next thing she could remember was talking to a police officer in a police station. She said that when she got to the police station she realised she did not have any panties or stockings on. She could not remember how they were removed or where they might be. She said she did not take them off. The victim also said that while she was at the police station she realised she was sore around the vaginal area. The victim made two further statements on subsequent days in which she gave further details of what she recollected had occurred that evening.
6. The applicant was initially interviewed by police on 25 July 1996. On this occasion he denied the allegation.
7. The applicant was again interviewed by police on 15 October 1996. On the advice of his solicitor, the applicant did not answer the questions asked of him. Prior to this, on 28 August 1996, police interviewed Mr A. In his interview Mr A explained that the victim was outside the establishment for quite some time, very intoxicated and trying to get in. He said the "guys" on the door wouldn't let her in, which was the right thing. He said the victim was hassling the doormen and throwing punches at them. He said, "Basically she was annoying everybody." He said the applicant was talking to the victim and offered her a lift home. He said he did not agree because they hadn't finished their shift and had other places to go to. He explained that they were in the applicant's car, but in the end he said, "Okay." He said he told the applicant they should: "Take her to the cab station at the front of a nearby hotel." He explained they took the victim to the nearby police station as the applicant knew where it was. Mr A said he thought that was better than leaving the victim on the street. He said, as the applicant was driving the car, he went into the police station. He said the police officer came and took the victim from the car and that she was abusive towards him, the police officer and the applicant. Mr A said they did not stop anywhere between the Parramatta establishment and the police station. Mr A also denied having had sexual intercourse with the victim.
8. Mr A was also charged with an offence in regard to the incident. Mr A's account of events, were consistent with what the victim's friend had said in her statement.
9. The police officer described the victim as being "heavily effected (sic) by alcohol", unsteady on her feet and her breath smelling of liquor. He said she appeared disoriented, continually upset and irrational. She left the police station without reporting a sexual assault.
10. Later in the day after she left the police station, the victim attended the local hospital and spoke with a social worker. She told the social worker that she had little memory of what had occurred but remembered being in a car with "a lot of guys" saying "leave me alone" and fighting someone off.
11. When the applicant was initially interviewed by police, on 25 July 1996, police obtained a blood sample from him. Blood samples were also taken from Mr A. These samples were compared with a sample taken from the victim's clothing. The samples were tested and as a result of the tests the seminal stain on the victim's blouse could have originated from the applicant. However, the seminal stain on the victim's skirt did not originate from the applicant, Mr A or the victim. The testing results also did not detect semen on swabs taken from the victim's vagina or her body suit.
12. On 16 January 1997, the applicant was committed for trial at the Local Court. On 24 March 1997, the NSW Director of Public Prosecutions determined there was insufficient evidence to prove the elements of the offence to the criminal standard, and the charge was withdrawn. The Office of the Director of Public Prosecutions subsequently confirmed that the decision was made due to discrepancies with the victim's evidence.
13. The 1996 charges were raised with the applicant in the course of an earlier application for a working with children check in 2005. The applicant informed the Commission for Children and Young People (CCYP) that the DPP had withdrawn the charge because he had consensual intercourse with the victim and that the allegation appeared to have been malicious. He had earlier told the CCYP that the Court had decided that there was no case to answer and dismissed the charge.
14. The evidence of the applicant in these proceedings is that he had left his car at the back of the establishment and after he had offered the victim a lift home he took her to his car and left her in the back seat and went back to the front of the club. He said he returned to the car some time later and found the victim was asleep. He said he called out to her and asked her to put on her seatbelt. He said he then entered the car by the passenger rear door and lent across the car to put the victim's seatbelt on. He said as he did so the victim said she was going to be sick and leaned across him to vomit. He said he could not recall if she did or did not vomit but she did spit out the rear passenger door. He said as the victim sat up she closed the car door and she put her knees around his waist facing him and she tried to kiss him. He said he pulled away and kept turning his head but she was persistent and she kept trying to kiss him and as he was doing this she was rubbing herself against him. He said she then placed her hand into his pants, she opened his pants and started performing oral sex. He said he did not resist and when she fell asleep he left the car. He said there was no vaginal intercourse and he did not ejaculate. He said that the victim was getting in and out of the car, as she wanted to go back into the club. He said when the victim got back in the car they drove away to take her to the closest police station of which he was aware. The applicant denied sexually assaulting the victim. He said he thought he was "doing the right thing" at the time. However, he went on to say that if he knew then what he knew now he would have immediately left the site with little or no regard for how she was going to get home safely.
15. The alleged sexual offence, if proven is objectively serious. The offence carries a maximum penalty of 20 years' imprisonment with a standard non-parole period of 10 years (Crimes (Sentencing Procedure) Act 1999, PT4 Division 1A). The aggravating features of the offending, if true was that the victim was heavily intoxicated, she was alone and the applicant and Mr A had assumed responsibility for her welfare.
16. The applicant has at all times denied the allegation but does acknowledge sexual contact occurred between himself and the victim. While he states that the victim was the initiator, the same aggravating features were still present. As noted by the respondent and accepted by the applicant during the course of the hearing, the incident involved a significant breach of professional boundaries. That is, she was vulnerable because, to the knowledge of the applicant, she was intoxicated. That is, she did not have had the capacity to consent to any sexual activity. The applicant acknowledged this was the case in his evidence at the hearing.
17. The 2006 work incident - In about February/March 2006 the applicant was employed as a service co-ordinator at a residential youth refuge. In his evidence he explained the refuge accommodated six people. They were all young and a mixture of girls and boys. He said he had been appointed to update the policies and procedures of the refuge. He said that while he had worked in a supervisor/administrator role before when he started this job, it was a new job with a different role and for which he was given no induction.
18. The material obtained by the respondent in regard to the applicant's employment at the refuge show that his employment was terminated on 27 April 2006 following concerns that staff had raised with the Management Committee of the Refuge. The concerns related to the applicant's extended working hours, inappropriate boundaries and a number of inappropriate work communications and practices (i.e. speaking to all residents inappropriately when the only issue was a conflict between two residents, the suggestion of creating a black list and lack of leadership).
19. In his evidence the applicant said he was given no opportunity to respond to the concerns by the refuge, instead his employment was immediately terminated as he was still working in his probation period. The material from the refuge suggest otherwise. In this regard the applicant was sent a letter on 19 April 2006, from the refuge Management Committee, outlining the concerns that had been raised by staff. He was also invited to attend the next formal meeting of the Committee on 24 April 2006. The minutes of that meeting record the applicant being present. On 27 April 2006, the applicant was given written notice of his termination. In the notice of termination the refuge Management Committee said: "…[The] Committee members have taken into consideration your personal issues that may have been a factor contributing to the issues raised. However, as the refuge has the aim of providing a safe place for young people, the safety and well being of the residents must be our first priority. The Committee did not feel that you have fully understood the seriousness and potential risks of your behaviours with the female residents could have placed yourself and the service in. Further, the relationship between yourself and the rest of the staff has not been as productively as hoped and as you mentioned during the interview, the situation with the staff has meant that the current work environment would be unworkable."
20. In these proceedings the applicant has specifically responded to each of the concerns raised by staff at the refuge.
21. In regard to the applicant's extended working hours, the staff noted that on eight occasions the applicant had worked from 12 to 13 hours (i.e. up to 9.30 or 10.00 pm some nights). In his evidence the applicant explained he worked these extended hours as he wanted to understand how the refuge worked. He said it was important to understand this in being able to fulfil his role of updating the policies and procedures.
22. In regard to inappropriate boundaries, the concerns of the staff were: (a) on 27 March, the applicant saying to residents who were play fighting that he was the only person the "bashes people" there; (b) the applicant telling a female resident that he had named a pet after a "raunchy" movie that involved a lady with big breasts; (c) on 2 March, having an hour long conversation with a female resident at the back BBQ area; (d) on 30 April, going to the shops with one of the female residents to purchase a few items - they were absent for about 20 minutes and purchased items that had been bought in the weekly shopping the day before and (e) on 30 April, chatting continually to two female residents one evening during bedroom chores.
23. In his evidence the applicant said the residents were role playing and not play fighting and that he did not say he was the only person there who "bashed people." He agreed that had he said words to this effect they were inappropriate in the circumstances. In regard to his pet, the applicant said he did talk about his childhood and what it was like when he migrated to Australia and could not speak any English. He also said he recollected speaking about a television program he had watched as a child that was about a man dressed up as a woman with large breasts. He said it was not considered to be raunchy and was shown as a family show.
24. In regard to the conversation with a resident in the BBQ area, the applicant said the back yard of the refuge was small and the BBQ area was within view from the house. He said he would often have his lunch out there as there was no other area for staff to have their lunch. In regard to taking the female residents to the shops, the applicant said he had taken her to buy bananas as there were none at the refuge and the resident wanted to have some. He said there was never enough fruit purchased and at the time bananas were very expensive. He said he did not leave the refuge unattended as there was another staff member there. In his oral evidence the applicant said he now recognises that he should not have taken the resident to the shops, even for a short time. He said he recognised that he should in any event not go with a resident alone. In regard to the concerns about chatting to the female residents during bedroom chores, the applicant said he recalled one of the females had just arrived at the refuge and she appeared to be frightened and distressed. He said he was waiting at the doorway because she was unpacking her things and in addition to talking to her he was checking she had not brought anything with her that she should not have brought.
25. In our view, the issues raised by staff about professional boundaries are of concern. However, we note there is no evidence of the applicant having acted inappropriately. What was of concern the refuge was the applicant's lack of understanding of the seriousness and potential risks arising from his behaviour in this regard. We share that concern, but are satisfied the applicant has demonstrated an understanding of the need to maintain appropriate boundaries when working with children and how his behaviour in 2006 might have led to a breach of these and what he needs to do in order to avoid such situations in future.

(b) Period of time since the matters occurred and the applicant's conduct since.

1. It is 20 years since the applicant was charged with the alleged sexual offence and 10 years since the relevant employment matter.
2. After 1996, the applicant undertook several qualifications relevant to his work in the community welfare sector. He has worked in that sector for a significant amount of time. There is no evidence of any further allegations of criminal conduct since 1996, or any further workplace complaints since 2006.

(c) Age of the applicant at the time of the matters

1. The applicant was 23 years of age at the time of the alleged sexual offence.
2. He was 33 years of age at the time of the relevant employment incident.

(d) Age of the victim at the time of the matters and any matters relevant to the vulnerability of the victim

1. The victim of the alleged sexual offence was 24 years of age at the time. As we have already noted she was vulnerable by reason of being heavily intoxicated and she placed herself into the care of the applicant and Mr A.
2. In relation to the employment incident, the residents involved in the refuge were aged under 18 years of age. Again, the applicant was in a position of authority in relation to the residents and they were by reason thereof vulnerable. In his evidence, the applicant readily acknowledged this.

(e) Difference in age between the applicant and victim

1. The applicant was one year younger than the victim of the alleged sexual offence.
2. In respect of the employment incident the applicant was at least 15 years older than the residents at the refuge.

(f) Whether the applicant knew or could have reasonably have known the victim was a child

1. The victim of the alleged sexual offence was not a child.
2. The applicant would have known that the residents of the refuge in 2006 were children.

(g) The applicant's present age

1. The applicant is now 43 years of age.

(h) Seriousness of the applicant's total criminal record and conduct since the alleged offence occurred

1. Other than the alleged sexual offence, in 1990, the applicant was found guilty, but not convicted, of the offence of having goods in custody believed to be stolen. A six-month good behaviour bond was imposed.
2. The applicant explained that the goods he had was a driver's licence that did not belong to him and his father's car keys. The driver's licence was one that had been given to him while he was in a refuge. He was in the refuge because his relationship with his father had deteriorated and he had asked the applicant to leave. While in the refuge somebody had stolen his wallet and his driver's licence. One of the other boys in the refuge had given the applicant his father's driver's licence. Subsequently, the applicant returned home.
3. The offending conduct occurred when police stopped him and question him about the car he was driving. The car was his father's car and he had given the applicant permission to drive it. The police asked him to produce his licence and he produced the licence that had been given to him. They also asked him who had given him the keys - he said his father and this was later confirmed by police when they contacted his father. There were other keys on his father's key ring belonging to cars he no longer owned. The applicant's explanation is that it was in regard to these keys that he was charged.
4. The applicant has also been the subject of a final Apprehended Violence Order (AVO) in 1992. The AVO was made to protect the applicant's neighbour following an incident relating to an ongoing neighbourhood dispute. In his evidence the applicant said he and his family were fearful of the neighbours and had taken out an AVO against them - in response the neighbours also took out an AVO.

(i) Likelihood of repetition of the conduct and the impact on children of any such repetition

1. In his report, Dr Allnutt explained that the applicant had migrated to Australia with his parents and younger sibling in 1985. He was 12 years of age. He completed 11 and had no learning difficulties at school.
2. Applying the STATIC-99 risk assessment, based on the applicant having committed the 1996 offence as charged, Dr Allnutt said the applicant would today be regarded as falling into a group at low risk of future sexual recidivism as compared to other sex offenders in the same study. He went on to explain that this was because there was an absence of further sexual offending in the last 20 years. He said an absence of further offending over time is associated with a reduction of risk - i.e. the longer a person is in the community and does not re-offend, the risk is reduced.
3. Dr Allnutt went on to consider a number of different scenarios around the 1996 alleged offending and the 2006 concerns. In this regard he considered there was a low-moderate concern about future boundary violations by the applicant, where the 1996 alleged offending is considered to have been initiated by the applicant and a boundary issue rather than sexual offending and the 2006 behaviour is not regard as a boundary issue. He also considered there was a moderate concern about future boundary violations by the applicant, where the 1996 alleged offending is considered to have been initiated by the applicant and a boundary issue rather than sexual offending and the 2006 behaviour is regard as a boundary issue.
4. In his oral evidence, Dr Allnutt explained that one can never say there is no probability of risk and "low risk" was the lowest that could be reached. Dr Allnutt noted the 2006 matters occurred 10 years ago and did not relate to sexual violations. He also noted there was no evidence the applicant was attracted to an immature body type.

(j) any information given by the applicant in, or in relation to the application

1. The applicant submitted that the Tribunal cannot be satisfied that he poses a real and appreciable risk to the safety of children. The matters which give rise to a risk assessment occurred 20 and 10 years ago. The 1996 incident involved a breach of appropriate boundaries, which the applicant acknowledges should not have happened. The 2006 alleged boundary issues he submitted were undefined. In any event, it was submitted that on the basis of the evidence given by the applicant at the hearing the Tribunal can be satisfied that the applicant has learnt his lesson and the evidence of Dr Allnutt that the applicant poses a low risk should be accepted.

(k) any other matters that the respondent considers necessary

1. The respondent submitted the 1996 charges were serious, even on the account of the applicant. He behaved inappropriately and unprofessionally. It was submitted the applicant lacked self-awareness in that he could not explain how he allowed himself to get into the position he found himself on the night in question while he was working. This, the respondent submitted was a factor associated with increased risk of sexual recidivism as identified by Dr Allnutt in his report.
2. The respondent submitted that the applicant's behaviour in 2006 was also of concern - especially spending an hour talking with a female resident at the BBQ, taking a female resident shopping and chatting to two female residents during bedroom chores.
3. It was the respondent's contention that the Tribunal cannot be satisfied that a situation similar to that which had occurred in 1996 did not have the potential to arise again.

Conclusions and orders

1. We reiterate, the applicant is not a disqualified person and there is no presumption that he poses a risk to the safety of children. However, as we have already noted at the commencement of these reasons for decision, we need to determine, on the material before us and the relevant provision of the WWC Act (i.e. section 4 and section 30) whether the applicant poses a real and appreciable risk to children today.
2. We agree the charges laid against the applicant in 1996 were serious if true. While the victim was an adult she was nevertheless vulnerable because she was intoxicated. The applicant's evidence is that the victim and not he initiated oral sex. We agree with the respondent that even if the applicant's account of events is accepted his conduct is a serious breach of professional boundaries and this alone gives rise to concerns about the applicant posing a real and appreciable risk to vulnerable people, including children.
3. As noted above, we have found that the applicant's behaviour in regard to boundary issues during the time he worked at the refuge are also of concern. However, there is no evidence that he in fact acted inappropriately.
4. We have placed little weight on the earlier finding of guilt in regard to the goods in custody offences of the AVO that was taken out against the applicant by the neighbour. These occurred when the applicant was very young and he has not otherwise offended in this regard again.
5. The 1996 charge related to conduct that occurred in 1994 - the applicant was 20 years of age at that time. In 2006 the applicant was 30 years of age and had not worked in a refuge previously. It is now 20 years since the applicant was charged and 10 years since he worked at the refuge. There is no evidence of any further offending or inappropriate workplace behaviour. In regard to the latter, the applicant has been working in the community sector for some time and he has not been the subject of any complaints.
6. In our view, the applicant gave forthright evidence. He acknowledged his behaviour in 1996 and 2006 was inappropriate. We are satisfied the applicant has an understanding and insight into his past behaviours and now appreciates the need to maintain appropriate boundaries when working with children and what he needs to do in order to avoid situations of the kind that arose in the past. That is, we accept the evidence of Dr Allnutt that on the evidence before us, we cannot say the applicant today poses a real and appreciable risk to the safety of children.
7. Accordingly, we find, having regard to the material before us and the applicable law, that the decision of the respondent is not the correct and preferable decision. On this basis the appropriate order is to set aside the decision of the respondent and in substitution thereof, make an order that the applicant be granted a working with children check clearance.
8. For the reasons sets out above, we order: 1. The respondent's decision, made on 28 September 2015, to refuse the applicant's application for a working with children check clearance is set aside. 2. In substitution for that decision the following decision is made: 3. The applicant is granted a working with children check clearance. 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: 13 October 2016