CFJ v Children's Guardian [2022] NSWCATAD 124 | Case summary

CFJ v Children's Guardian [2022] NSWCATAD 124 | Case summary | Zoe

[4]

Current application for clearance

The applicant requires a clearance in order to pursue employment as a teacher. He was eligible to apply again for a clearance on 16 October 2020. He did so on 31 December 2020.
The Children's Guardian determined that the applicant was subject to an interim bar under s 17(1) of the Act which barred him from engaging in child-related work, and referred him for risk assessment. The applicant was notified in writing of the interim bar and risk assessment on 2 February 2021 and was invited pursuant to s 16(1) of the Act to provide further information to inform the risk assessment. The applicant provided a submission dated 21 March 2021 in support of his application for clearance.
The applicant was notified on 7 September 2021 that the Children's Guardian proposed to refuse his application for clearance and provided a further opportunity to him to submit further information for consideration. The applicant did not provide further information.
Following completion of the risk assessment, the Children's Guardian notified the applicant in writing on 8 October 2021 that pursuant to s 18(2) of the Act his application for clearance was refused because the Children's Guardian was satisfied that he poses a risk to the safety of children. The 2021 Decision set out the reasons why, after completion of the risk assessment, the Children's Guardian was satisfied that the applicant poses a risk to the safety of children.
The applicant filed an application for administrative review on 25 October 2021. In written submissions, the applicant said that he has always denied the allegation of accessing child pornography. He asserted that he is not a risk to children. He also challenged, on a number of grounds, the school's notification to the Ombudsman of a reportable allegation, the Ombudsman's notification of concern to the Children's Guardian and the jurisdiction of the Children's Guardian to conduct a risk assessment in relation to his application for a clearance.
The respondent opposed CFJ's application for administrative review and sought orders to have its 2021 Decision affirmed and the application for review dismissed.
In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to the safety of children.
For the following reasons, we have decided to affirm the respondent's 2021 Decision.

[11]

Discovery of laptop computers infected with virus/malware

The School discovered in mid-November 2014 that two laptop computers allocated to the applicant had been infected with a virus/malware as a result of a large number of pornographic sites having been accessed from the computers between June 2014 and November 2014. The School had cause to examine the laptops because of the number of times they had been infected by malware and required attention from the School's IT staff.
A meeting was arranged to take place on 19 November 2014 with the applicant to discuss the matter. At that meeting with the School's Principal and Deputy Principal, the applicant admitted to accessing pornographic sites. In a witness statement dated 11 April 2015 by the Deputy Principal (prepared in anticipation of unfair dismissal proceedings before the Fair Work Commission (FWC) initiated by the applicant following termination of his employment), the following conversation was said to have taken place: Principal: "It appears that our computer has been used to access inappropriate materials. This is evidenced from the various software reporting logs that indicate a list of websites that have tried to infect your computer. These sites are pornographic in nature." Applicant: (After declining an offer to view the malware log indicating which websites were involved) "I know what's there. Yes, I have used my computers to access pornographic sites. I have a problem with pornography and have sought help for this problem in the past. I don't have a wife. I don't see my wife undressing or naked. Women just wouldn't understand. I am a single man and I find looking at pornography a release."
According to a witness statement dated 12 April 2015 by the Principal, also prepared in anticipation of FWC proceedings, the conversation at the meeting on 19 November 2014 included the following exchanges: Principal: "In the process of investigating why your laptop was recurrently infected with malware, the IT department have discovered a large number of pornographic sites. There are a lot of sites recorded (emphasis added). Did you access pornographic sites from your work laptop?" Applicant: "Yes, it was me" Principal: "Did someone else have access to the computer?" Applicant: "No, it was me, I was the person who was accessing those sites". This is an activity that gives me a sense of release. We are all hot blooded males and so you should understand that I need to do this given my marital situation. It is better to do what I am doing than to remain frustrated."
At that meeting, the applicant was handed a letter from the School setting out its concerns. The letter said that an examination of the laptops on which he was the active user, disclosed that a large number of pornographic sites had been accessed. The letter asserted that on more than 300 occasions a malware threat had been blocked due to access to inappropriate sites from the laptops.
The letter asked the following questions: 1. Did you access any pornographic sites that contained images of children, either male or female, under the age of 18 years? 2. Did you access pornographic sites from your work computer? 3. If so, can you provide any reasonable explanation as to why you accessed these sites? 4. I note that a number of the sites have the word "teen", "young" or "Schoolgirl" in the title. Did you access, or believe that you accessed, any pornographic sites that contained images of teenage girls or boys (that is, under the age of 20 years)? 5. Are there any relevant matters or circumstances of which [the School] should be aware which may influence [the School's] findings in this matter?
The applicant was required to provide a considered response by 24 November 2014. He was permitted to retain a laptop for the purpose of preparing his response to the School's allegations and questions on the basis that he not use it for accessing pornographic material. According to the Deputy Principal's witness statement, CFJ said "Don't worry I'm not going to use it to access inappropriate sites".
The School's letter offered the applicant four confidential counselling sessions with Dr Cliff Powell, a Clinical Psychologist (Dr Powell).
In his response dated 24 November 2014, CFJ admitted to accessing adult pornographic websites from his work computer but pointed out that it had been out of hours, outside the School premises and via his own personal Internet service. He denied searching for any site containing pornographic depictions of children, male or female, under the age of 18 years and denied having viewed pornographic images of children under the age of 18 years via the Internet or in any pictorial or graphic form.
In response to the question whether he had accessed sites with the word "teen", "young" or "schoolgirl", CFJ said: "It is my firm belief that I did not access any illegal pornographic sites. No material that I viewed acknowledged the fact that the participants were under the legal age and no images I viewed gave me the impression that they were under the legal age. Some sites were accessed by clicking an image of an adult participant which then took you to the URL of another site that had a misleading name but where the participants were over the legal age."
In answering a question whether there were any relevant matters of which the School should be aware which may influence its findings, CFJ provided the following response as mitigating circumstances: "The mitigating circumstances are that I am a single male with a normal sex drive which at present is unable to be expressed in a marriage relationship, resulting in continual sexual frustration. I am hoping the school may understand that the male sex drive is a powerful urge in most men and in the absence of having a wife or seeing one's wife naked of course gives one the desire to appreciate beauty in the female form. I believe this is a God given drive. Normally this drive is channelled towards a wife which unfortunately at present I don't possess. I have never viewed looking at the female form as being unnatural. It is part of what attracts men towards the opposite sex and marriage. I admit that using the school computer is in breach of any employment contract however I hope that the school may understand that at no time were any sites accessed at school but in the privacy of my own home on my own network not the schools (sic) network."

[12]

Procurement of expert forensic report on behalf of the School

On or around 26 November 2014, the Principal arranged for the School's General Manager (GM) to procure through external lawyers an external expert to forensically examine the laptops. Accordingly, Dr Allan Watt was engaged. He produced a report on 5 December 2014 (the Watt Report).
With respect to one laptop, Dr Watt said that it had undergone a recent clean-up, with deletion of more than three million files, of a multitude of file types. The Internet history analysis revealed access of some pornography web pages that were specific to the applicant as the user. However, Dr Watt said that he could not determine if the URLs related to young persons.
With respect to the second laptop, the Internet history revealed that the laptop had been used extensively to access both adult and young person pornography. In his assessment, more than 4,200 web pages visited were specific to young persons. Dr Watt suggested that private browsing mode may have been used, masking the level of Internet activity.
The Watt Report disclosed that over a 5-month period, the applicant had visited a number of pornographic websites specific to young persons. In particular, the report identified the number of times that pornographic websites containing URLs or titles that suggested pornography of young females had been accessed:

4,265 sites containing the word "teen" in the title;
95 sites containing the words "young girl" in the title;
8 sites containing the words "School Girl" in the title;
5 sites containing the word "lolita" which Dr Watt observed is a label associated with child abuse material and having a specific association with girls in the 12 year old age bracket.

Dr Watt also reported that an online video titled "Erotic School Girls" had been viewed and that the following websites had been visited:

a website (www.alsscan.com) containing a page titled "sex picnic with lolitas @ ALS Scan";
a website (www.18schoolgirlz.com) that portrayed girls in school uniforms participating in hard core sexual activities;
a website ("sexholidaysasia.com") containing a webpage titled "Thailand sex trip - go go bar - a night with a school girl - sex holidays Asia".

Dr Watt said that due to clean-up activity on the laptop, it was not possible to determine whether access to some young person specific sites had been a result of searching for specific words or being redirected by clicking on a link at a parent website (as opposed to a redirection due to malware). He said that there are usually multiple links that are not specific to one particular website. In Dr Watt's view, the history indicated an interest in young persons in comparison to an interest in adults.
The Watt Report further disclosed there were some pornographic pictures on the hard disc drive of girls that Dr Watt believed were under the age of 16 and that some of them appeared to be around 14 to 15 years of age. The images were from what he described as "Unallocated Clusters" or deleted space and as a result contained no metadata. He opined that since the applicant was the sole user of the laptop, having regard to the metadata from the Internet history, the applicant had a tendency to access young girl websites.
With respect to the availability of child abuse material on the Internet, Dr Watt made the following observation: "Child abuse material is not readily available on the internet, given it is illegal and any web pages that come to the attention of watchdog agencies, get them taken down. However there are websites available and these are often hidden from normal view and explicit knowledge is required to access them. To access these is a deliberate act and not as a result of a redirection link from another website or a result of malware hijacking. This therefore shows [the applicant] had explicit knowledge of the existence of such website and this is shown through the presence of these illegal images that were located."
The report also disclosed that on 22 November 2014, after promising at the meeting on 19 November 2014 to not use the School's laptop for inappropriate viewing, the applicant accessed pornography. Twelve unique primary sites and 17 URLs were accessed over a period of around 1.5 hours, with content referencing "teens" such as "teen nudist"; "topless teen"; "teen pussy, wet pussy, close up pussy"; "Russian teen anal and swallow" and "oiled teen bitches firm boobs".
In summary, Dr Watt concluded: "…it appears [the applicant] has an interest in sexual activity of children 18 years and under. This activity is regular, spanning five months and it is likely due to private browsing he has accessed an even far great (sic: greater) amount than has been located."

[18]

Expert report prepared by Mr Nick Klein for the applicant

For the purpose of the FWC proceedings, the applicant arranged through his legal representative for an expert computer forensic report to be prepared by Mr Nick Klein. Mr Klein's report dated 18 March 2015 (the Klein Report) responded to the School's response to the applicant's FWC proceedings and the Watt Report. Mr Klein did not examine the laptops.
Mr Klein agreed that the images from Unallocated Clusters or deleted space contained no metadata which he asserted was necessary to establish the provenance and context of the presence of the images found on the laptop. As a result, Mr Klein observed that it was impossible to confirm that the applicant:

"was using the computer when the images were downloaded, copied or saved
deliberately accessed the web page or data source containing these images, or
has even seen the images at all."

The Klein Report noted that in circumstances where minimal metadata for each entry is available, it is more difficult to reconstruct the context of a user's Internet activity. In Mr Klein's view, questions about how a user progressed through an Internet session, from entering search terms to clicking through web pages cannot be easily answered. He also observed that generally "pop up" webpages are common with web pages containing pornography, as is automatic redirection.
Whilst Mr Klein did agree with Dr Watt that the webpages identified in the Watt Report had been accessed, he disagreed with what appeared to be Dr Watt's assumption that the applicant individually and deliberately accessed every web page listed. Mr Klein's view was that it was not possible in the absence of metadata to draw any conclusions about the applicant's intentions in accessing the material.
Mr Klein observed that the annexures to the Watt Report contained many duplicate entries which gave an inflated view of the applicant's Internet activities.
With respect to the identification of search terms, Mr Klein did agree with Dr Watt's conclusion that the search terms used were likely to return pages with younger people. However, he disagreed that the search terms related to child abuse material. He also disagreed that they were somehow related to the small number of images recovered from the laptop's hard drive.
Mr Klein noted the five web pages in the Watt Report that included the term "lolita" and agreed that the term is parlance for material depicting underage girls. He also noted that none of the search terms recovered from the laptop included the word "lolita" and that the lack of metadata made it difficult to analyse the context of the applicant's access to those web pages. He also referred to the web pages listed in Annexure E to the Watt Report that included titles such as "school girls", "young girls", "young teens", "young virgins", "models 16" and "innocent". Whilst he did not consider those terms to be evidence of illegal material, Mr Klein observed that such titles may contain sexual images of children under the age of 18.
With respect to web pages with titles containing phrases such as "school girl" and "school uniform" and Dr Watt's opinion that the evidence "suggests he has a sexual interest in that age group of children and could pose a risk as a teacher", Mr Klein noted a technical point, i.e. that none of the terms referred to "school children" (Tribunal's emphasis).
Mr Klein's view was that the search term "girls" was widely used in legal pornography and was not parlance for content depicting girls under the legal age. Mr Klein observed that the searches listed in Annexure F to the Watt Report were entered into the 'Bing' search engine operated by Microsoft Corporation and that in 2013 Microsoft implemented a change to 'Bing' aimed at blocking searches for child abuse material. In his view, this significantly decreased the possibility that the applicant could have located child abuse material by entering the identified search terms into the 'Bing' search engine.
Mr Klein said that he saw no evidence that private browsing mode was used. He also said that using private browsing results in the contents of visited web pages, included images, being saved to the Internet cache of the local computer but that even though local files are deleted when the browser is closed, they can be recovered for some time using computer forensic methods.
Overall, Mr Klein disagreed that the evidence supported a conclusion that the applicant has an interest in sexual activity of children 18 year and under because, in his view:

the search terms do not indicate an interest in underage children
of the many thousand records of web page access, only 5 web pages were identified as containing "lolita" and he asserted that it had not been established that they actually contained child abuse material
the five instances of web pages containing the term "lolita" lacked metadata to establish the context of the access
the small number of recovered images on the hard drive purportedly depicting children under the age of 16 contained no metadata that could provide contextual information to support a conclusion of a sexual interest in children under 18 years.

[19]

Dr Watt supplementary report in response to the Klein Report

As part of the FWC Proceedings, the School obtained a further report from Dr Watt (the Watt Supplementary Report).
The Watt Supplementary Report responded to a number of comments made in the Klein Report. Dr Watt's first general comment was to note that Mr Klein's report was apparently prepared without analysing the data contained in the annexures to Dr Watt's first report.
Dr Watt commented on Mr Klein's synopsis of a number of 'transition types' used to access a web page and Mr Klein's observation that no analysis appeared to have been performed to confirm whether malware could have been responsible for accessing some of the pornographic web pages. In Annexure A to his Supplementary Report, Dr Watt observed that with respect to 1,144 webpage visits to pornography webpages from the Google Chrome History, only one had been "typed" and the vast majority were "linked", meaning the user arrived on the page by clinking a link on another page, and not by an automatic redirection or pop-up.
With respect to the issue of malware 'hijacking' a browser and causing redirections (i.e. malware that takes over an internet browser and loads web pages containing pornography), Dr Watt concluded that none of the websites identified in Annexure A to his supplementary report were accessed as a result of hijacks, and that they were primarily accessed by clicking on links.
On the issue of private browsing, Dr Watt observed that two 'jumplist' records present on Laptop 2 showed that Google Incognito mode (a private browsing feature) had been used on 29 October 2014 and 19 November 2014 (Annexure B to the Watt Supplementary Report, p 1138, Vol 3, Exhibit R1). Additionally, Dr Watt commented that Mr Klein's comments about internet caching activity were out of date.
Upon further review of the web browser activity, Dr Watt confirmed that the access to 'lolita' was by way of link, and that they were deliberately accessed multiple times by following a link from another page.
Both experts agreed that the search terms that had been used indicated that the applicant searched for words that were likely to return pages with younger people. The Watt Supplementary Report observed that the majority of sites were accessed only once or twice but the site "www.teenport.com" had 24 visible images, the browser history indicated that it had been visited 104 times and that the URL had been typed 111 times.

[21]

Ombudsman notification of concern to Children's Guardian

As a result of receiving the School's notification of the allegations made against the applicant, the Ombudsman made a "notification of concern" to the Children's Guardian pursuant to s 25DA of the Ombudsman Act. According to the interim bar summary report (p 324, Vol 2, R1), the Children's Guardian received the notification of concern on 6 March 2015 and issued a s 31 notice under the Act to the Ombudsman on 9 March 2015 asking for any information which the Ombudsman believed would assist an assessment of risk of the applicant.
The Ombudsman responded to the s 31 notice on 27 March 2015. In addition to noting the applicant's termination of employment on the basis of allegations that he had used work-issued laptops to view pornography, in particular, websites of young girls, the Ombudsman noted that:

the Watt Report found that the applicant's online activity strongly indicated a prolific interest in child pornography, including a website with pornographic images of girls in school uniform;
the applicant had explored the option of 'sex tourism' by visiting a page titled "Thailand sex trip - go go bar a night with a school girl - sex holidays in Asia";
from the School's analysis of the laptops (and confirmed in the Watt Report), considerable interest was attached to 'upskirting' videos, apart from web searches involving school girls;
despite promising not to do so, the applicant had accessed pornographic images of teenagers until 22 November 2014 during the period when he was permitted to use the School's laptop for the purpose of preparing his response to the School's allegations.

The Ombudsman also advised the status of the NSW Police investigation: "On Wednesday 04/03/15, Police met with officers from the State Electronic Evidence Branch (SEEB) for examination of the laptops utilised by [the applicant] whilst at [the School]. SEEB could not find any images of videos of child abuse material saved on the devices. This means that police have no grounds to charge [the applicant] with possessing child pornography. However, the officer in charge (Senior Constable Rebecca Whitfield) confirmed that the websites referred to in the [Watt Report] were accessed/viewed and that concerning searches had been conducted using terms such as "young" "girls" "sex tourism" and "Lolita". [Tribunal's emphasis] Senior Constable Whitfield advised that these web page titles are still able to be accessed via the web browsing history which will remain on the laptops for the [School] to use as evidence in their Fair Work Dismissal Case. Senior Constable Whitfield further advised that an intelligence report will be made in relation to [the applicant] along with the completion of the case. She indicated that she has communicated the results to the plaintiff and defence and stated she would stress to the defence that just because [the applicant] has not saved anything that police are aware of, it does not mean he has not acted criminally and his viewing is of concern to police. [Tribunal's emphasis] In response to this outcome we asked Senior Constable Whitfield whether NSW Police would be referring the information to the AFP to assess whether the forensics support a Commonwealth charge of 'Using a carriage service for child pornography material' (474.19), given it includes an 'access' offence. On 09/03/15 Senior Constable Whitfield confirmed that she had disseminated the case to the AFP and that [the applicant's legal representatives] has been advised of this."

[23]

Reportable conduct investigation

In the meantime, the School's notification to the Ombudsman resulted in the School undertaking a reportable conduct investigation. On 7 July 2015, the School notified the applicant that the School considered his conduct amounted to "reportable conduct" as set out in the Ombudsman Act. The School informed him that the allegations fell into the category of "sexual misconduct", in particular "sexually explicit comments and other overtly sexual behaviour" as referenced in the Ombudsman's Child Protection Practice Update 2013 titled "Defining Reportable Conduct".
The School's letter of 7 July 2015 to the applicant contained the following allegation of reportable conduct: "It is alleged that regularly and repeatedly over a period of approximately five months in 2014, on a [School] issued laptop allocated to you, you accessed websites containing pornographic material that included young people under the age of 18 as the subjects. Such conduct constitutes sexualised behaviour towards, and involving, young people that you knew or ought to have known was unacceptable in your role as a secondary teacher. Further there were descriptors on these websites, and either the URL, the title or both, containing the words "young", "teen", "girl", "school girl" or "college girl".
The applicant was asked to provide his response in writing by 7 August 2015 to enable the School to consider his views compared with the School's provisional view that the allegation was supported.
It appears that despite a raft of correspondence between the School and the applicant (as well as the applicant's late father) from 9 July 2015, no formal response to the allegation of reportable conduct was received. The School noted in its Final Investigation Report that the applicant's position appeared to be (as expressed in his letter dated 14 December 2014 advising that he proposed to file an unfair dismissal application) that there was insufficient evidence that the Reportable Conduct had occurred, that the alleged conduct was not Reportable Conduct within the meaning of the legislation and that the School had acted unfairly in both his dismissal and in its reporting of the matter to the Ombudsman. Under cross-examination, the applicant said that he had never accessed child pornography and did not want to answer questions that, in his view, assumed he had accessed such material. He said it was not correct for that assumption to be made or for him to admit guilt and then assert that he is a reformed person. He said that on the basis of Dr Powell's assessment, he is not a risk to children.
The Final Investigation Report (which was undated) took into account the applicant's experience as a teacher to conclude the following: "Given [the applicant] was a professional educator, he would have known or could be expected to know that in browsing a significant volume of pornography clearly identified in the titles, descriptors and banner images as teen/young person/school girl he would view material inappropriately focussing on young persons and thereby engage in professional misconduct."
On the basis that the applicant had made numerous admissions that he used the School's laptops to access pornographic material, and relying upon the advice of experts, the School determined that some of the material was child pornography or child abuse material and the applicant's conduct was Reportable Conduct within the meaning of the Ombudsman Act.
The School ultimately determined that the applicant had accessed "young person pornography" and that this constituted sexualised behaviour towards and involving a class of young people that he ought to have known was unacceptable in his role as a teacher. The finding that the applicant had engaged in Reportable Conduct was based on the malware logs and the two Watt Reports which demonstrated:

that the volume of URLS over 5 months (around 2,084) was very high, with an estimated number of images viewed being more than 41,000;
a deliberate, continuous pattern of accessing pornography, and not a "one off" event;
that the nature of the material self-identified as young person pornography.

By letter dated 26 October 2015 the School informed the applicant of its determination.

[25]

Respondent's decision refusing clearance - 8 October 2021

The 2021 Decision of the Children's Guardian refusing to grant a clearance to the applicant considered the matters set out in s 15(4) of the Act. The 2021 Decision noted that the applicant had denied deliberately accessing child pornography, and asserted that he had been automatically redirected to websites from pop-ups. The 2021 Decision also noted that the applicant's criminal history did not include any charges relevant to the workplace allegation due to insufficient evidence meeting the criminal threshold.
The Children's Guardian observed that the applicant had informed that no other person had access to his laptop computers and that the activity of accessing pornographic material was not a new activity for him and was for his sexual gratification. A number of matters of concern were identified, including that:

the forensic examination of the laptops evidenced repeated access of child pornographic material which had been clinically assessed as containing images of females aged 16 years or younger;
the vast majority of visits to pornographic sites was by entering key words and phrases or by clinking on a link to return images of females of school age or younger, including girls in school uniforms and images associated with the term 'lolita' which is known as a term for underage girls;
the repeated access of the same websites evidenced intent, having been accessed deliberately rather than accidentally or inadvertently through automatic redirection from a parent website;
a workplace investigation substantiated sexual misconduct;
the applicant's qualifications and 19 years of teaching experience inferred an ability to act protectively towards children and uphold child protection principles;
the applicant had not provided any information addressing the concerns held by the Children's Guardian which caused his previous clearance to be cancelled (a decision subsequently affirmed by the Tribunal), and that the PAI finding by Dr Powell was not sufficiently persuasive to overturn the cancellation decision;
the applicant maintained his position that the School's reporting to the Ombudsman was misconceived for a number of reasons including that no victims associated with his behaviour had been identified;
the applicant had not demonstrated any insight into how his consumption of child pornography directly contributes to generating a market for illegal images, enabling the sexual exploitation of young vulnerable girls, and maintained his position that no victims associated with his behaviour had been identified;
the applicant had not provided information that demonstrated his ability to identify potential harm caused to children by accessing child pornography;
the applicant had not addressed the risks associated with accessing underage pornographic material depicting images of females involved in hardcore sexual activities, who were of the same age group of students he was, at the time, employed to teach;
the applicant had not provided information as to how the risk for any future recurrence of the conduct would be mitigated.

[26]

The applicant's case

The applicant argued his case along the lines summarised below. We hasten to caution that because the applicant's Submissions and Submissions in Reply are in parts repetitive and circuitous, our summary does not attempt to identify each and every nuanced assertion in his material: 1. he never deliberately searched for any site that contained child pornography and has never seen or viewed child pornography via the Internet or in any pictorial or graphic form; 2. he accessed pornographic material out of hours, outside the School's premises, in his own personal time, and via his own Internet service provider because he lived with "continual sexual frustration" and looking at naked women gave him "a sense of sexual satisfaction" (p 1498, Vol 3, Exhibit R1); 3. he relied upon compliance statements that the sites he viewed only contained images of women who were of legal age and asserted that he was often redirected involuntarily or through "pop-ups" to other sites but that no images he viewed gave him the impression that the subjects were under the legal age; 4. accessing legally published websites in the privacy of his own home and looking at "nudie pics of women" is not sexual misconduct involving children and is not a child protection matter; 5. any search by him using the word "girls" was synonymous with a search for "women" and that the Klein Report supports his assertions and ought to be preferred over the Watt Report and the Watt Supplementary Report; 6. he has never been charged or convicted of an offence; 7. the School's notification to the Ombudsman did not meet the threshold of being a reportable allegation as defined in s 25A of the Ombudsman Act because there was no involvement of a child and, in particular, no involvement of a student of the applicant; 8. the Ombudsman's notification of concern to the Children's Guardian did not meet the requirements under the Ombudsman Act and was therefore not valid; 9. the Children's Guardian's risk assessment was not legitimately triggered because the Ombudsman's notification of concern was not valid; 10. there are no identifiable 'victims' as a result of the applicant viewing images; 11. if there are any 'victims', the responsibility lies with the persons who produced the images and not the applicant (and, further, that the subjects are totally unaware that the applicant has accessed images of them); 12. with respect to the age of 'victims', reliance upon estimates of their chronological age of subjects based on the 'Tanner Scale' (discussed further in these Reasons) is invalid; 13. also with respect to the age of 'victims', any estimate of the age of a 'victim' at the time the conduct occurred must also take into consideration the age of the photo; 14. on the basis of his arguments about identifying the age of any 'victim', it is not possible for the Tribunal to consider the matters in ss 30(1)(d), 30(1)(e) and 30(1)(f), and the Tribunal is therefore unable to determine the application; 15. since there is no identifiable child associated with the original alleged conduct, it is not possible for the Tribunal to consider under s 30(1)(i) of the Act the likelihood of the conduct being repeated and the impact upon a child (who is incapable of being identified).

[30]

Meaning of "child abuse material"

The meaning of "child abuse material" in the Crimes Act 1900 (NSW) is as follows: 91FB Child abuse material - meaning (1) In this Division - child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive - (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include - (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The private parts of a person are - (a) a person's genital area or anal area, whether bare or covered by underwear, or (b) the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
It is an offence under s 91G of the Crimes Act to use children for the production of child abuse material: 91G Children not to be used for production of child abuse material (1) Any person who - (a) uses a child who is under the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty - imprisonment for 14 years. (2) Any person who - (a) uses a child who is of or above the age of 14 years for the production of child abuse material, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty - imprisonment for 10 years.

[31]

Reportable allegation and reportable conduct

At the time that the School advised the Ombudsman of the reportable allegation, the relevant provisions were contained in Part 3A of the Ombudsman Act (relevant provisions are now located in the Children's Guardian Act 2019 (NSW) (the CG Act)). Part 3A of the Ombudsman Act 1974 provided for the notification to the Ombudsman of child abuse allegations against employees of designated government or non-government agencies that have children in their care and for the monitoring by the Ombudsman of investigations and the results of investigations into those matters.
The terms "reportable allegation" and "reportable conduct" were defined in s 25A of the Ombudsman Act as follows: "reportable allegation means an allegation of reportable conduct against a person or an allegation of misconduct that may involve reportable conduct." "reportable conduct means: (a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence or an offence involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)), or (b) any assault, ill-treatment or neglect of a child, or (c) any behaviour that causes psychological harm to a child, whether or not, in any case, with the consent of the child."
Further guidance is provided on "sexual misconduct" involving "sexualised behaviour with or towards children" in the Ombudsman's Child Protection Practice Update 2013 titled "Defining Reportable Conduct". Paragraph 2.2.2 of that Practice Update provides: "Sexual misconduct includes a broad range of sexualised behaviour with or towards children. While it is not possible to provide a complete and definitive list of unacceptable sexual conduct involving children, the following types of behaviour give strong guidance: Sexualised behaviour with or towards a child (including sexual exhibitionism) … Exposure of children and young people to sexual behaviour of others including display of pornography".
Under s 25C of the Ombudsman Act, the head of a designated government or non-government agency must notify the Ombudsman of any reportable allegation against an employee of the agency within 30 days of becoming aware of the allegation. In the matter before this Tribunal, the School relied upon the report of Dr Watt dated 5 December 2014 in notifying the Ombudsman on 19 December 2014 of the reportable allegation.
The Ombudsman may, pursuant to s 25DA(1) of the Ombudsman Act, disclose the following information to the Children's Guardian for the purpose of the exercise of functions under the WWC Act: 1. information about an employee of a designated government or non-government agency that the Ombudsman believes may cause that employee to be a disqualified person under the Child Protection (Working with Children) Act 2012, or to be subject to an assessment requirement under that Act, 2. information about exemptions under section 25CA, 3. information about reports of investigations into reportable conduct by the Ombudsman or a designated government or non-government agency.
It is important to note that nothing in s 25DA(1) of the Ombudsman Act limits the information that the Ombudsman may otherwise disclose to the Children's Guardian under that Act or any other Act or law: s 25DA(2) of the Ombudsman Act.
The Ombudsman may conduct an investigation concerning any reportable allegation against an employee of a non-government agency (such as the School) of which the Ombudsman has been notified: s 25G of the Ombudsman Act. Alternatively, the Ombudsman may decide to monitor the progress of an investigation by a non-government agency if the Ombudsman considers it is in the public interest to do so: s 25E of the Ombudsman Act.
As soon as practicable after concluding an investigation, the head of an agency must send a copy of any report on the results of the investigation to the Ombudsman: s 25F of the Ombudsman Act.

[38]

The approach to fact finding and the assessment of risk

In determining the application, the Tribunal is required to consider "the totality of the evidence": BKE at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the "cumulative effect" of the matters before it: CYY at [69]-[71].
Alleged incidents may be found to have occurred on the balance of probabilities having regard to the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) or they may be found to have not occurred. The Briginshaw principle can broadly be described as a standard of satisfaction to be reached where serious allegations are concerned. Put simply, serious allegations with serious consequences require more compelling evidence for the decision maker to reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist.
However, in relation to the assessment of risk, the Tribunal is bound to follow the decision in BKE at [33]: "Thus in such cases 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."
In Office of the Children's Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[15], per Justice Harrison: "The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless"."
Where the tribunal is unable to make a positive finding, if there is nonetheless a "lingering doubt or suspicion" which remains then such doubt or suspicion does not count against an applicant for a WWCC clearance: Children's Guardian v CKF [2017] NSWSC 893 (CKF) at [56], per Davies J. Equally, such doubt or suspicion is not fatal. Rather, it is simply a matter to be considered when all of the evidence is weighed up in assessing whether the applicant poses a risk to the safety of children: CKF at [56].
Relying on the analysis in CXZ at [51], a "very many cases" will not lend themselves to definitive factual determination. Where an allegation is neither "well founded" nor "groundless", the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].

[40]

Mandatory criteria for determining an application

In determining this application, the Tribunal must consider the matters set out in s 30(1) as set out below: 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 criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary.
In addition, if the Tribunal is considering making an order enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the Act: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that - (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.

[42]

Second limb of the two-part test under s 30(1)(b) - the "public interest" test

The second limb of the two-part test is referred to as the "public interest" test. The notion of "public interest" was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]: "The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question."
In proceedings under the Act, the "public interest" must be considered in light of the paramount purpose of the Act, namely, to ensure the protection of children from sexual or physical harm: s 4 of the Act.
The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75].
When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (ZZ) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]: "In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others."
If the Tribunal is not satisfied that an applicant has met either of the first or second limbs in the two-part test, then it is precluded from making an order enabling the applicant to work with children.

[44]

Preliminary comment on the applicant's approach to these proceedings

By way of preliminary comment, it is very apparent to the Tribunal that the applicant's approach to arguing why he should be granted a clearance is to continue to ventilate his frustrations with previous notifications, investigations, risk assessment and proceedings. His primary focus was on the history of the matter and not on the issue of demonstrating that he does not pose a risk to the safety of children. He continued to challenge the School's notification of reportable conduct allegations, the validity of the Ombudsman's notification of concern to the Children's Guardian, the jurisdiction of the respondent to conduct a risk assessment, and the reasoning for the 2015 Decision cancelling his clearance. In continuing the challenge those matters, he has not accepted the Tribunal's reasoning in CFJ (No 1) and has not accepted some of the matters as reasoned by Schmidt J in CFJ (No 2).
Since the Tribunal is not required (and, indeed, has no jurisdiction) to review those matters in the sense of finding whether they were correctly or incorrectly determined or concluded, a substantial number of the applicant's submissions have little or no relevance. We do not intend to identify each matter raised by the applicant. As noted by the Tribunal's Appeal Panel in EMF v Cessnock City Council [2021] NSWCATAP 234 at [31] - [32], the Tribunal is not required to make findings on every argument or every submission advanced before it and to record those findings and submissions in the decision.
However, to the extent that the applicant's assertions on the necessity for criminal convictions to substantiate a risk assessment, and on the exercise of functions by the Ombudsman and the Children's Guardian permeate his Submissions, we will address those matters.
For completeness, we point out that we do not propose to address the multiplicity of assertions by the applicant that various parties acted fraudulently or maliciously or were disingenuous. The case before us is to assess the applicant's risk to the safety of children.

[46]

Children's Guardian's 2015 Decision - Jurisdiction, authority and powers

CFJ incorrectly asserted (paragraph 1 of his Submissions) that his clearance was cancelled for "supposedly 'using a carriage service for child pornography material" which is a federal criminal offence, code number 474.19.' "
The 2015 Decision noted that the Ombudsman had advised that the NSW Police had referred the matter to the Australian Federal Police (AFP) to assess whether the forensic analyses supported a "Commonwealth charge". However, the 2015 Decision otherwise made no reference to a federal criminal offence under s 474.19 of the Criminal Code in the CCA. CFJ's submission fails to understand that the Children's Guardian was not reliant upon any proceedings or convictions against him. The Tribunal understands that the AFP has not laid any charges against the applicant.
The 2015 Decision made it clear that the determination was whether, on the balance of probabilities, the applicant posed a risk to the safety of children and therefore could not engage in child related work because the evidence was that the applicant had viewed pornography with titles including:

'Naked and cheerful teen'
'teen pussy and girl pictures'
'Sex with teen girls in school uniform fetish'
'Dirty drunk college teen sex party'
'Hot little teen girl naked in the kitchen'
'Young dreams - young girls - young teens porn pics'
'party teen sex pictures, teen porn, naked models, sexy girls @ New Nubiles'

The 2015 Decision referred to the Ombudsman's notification of concern, and noted that the reportable conduct investigation then being conducted by the School (under monitoring by the Ombudsman) as well as the FWC proceedings, were not directly relevant to the issue to be determined by the Children's Guardian. The decision to cancel CFJ's clearance specifically noted that it was not for the Children's Guardian to comment on those other proceedings or to wait for them to reach a final conclusion. The decision also noted that the Children's Guardian was not required to forensically test material to a criminal standard and was not required to make a finding as to how CFJ had accessed the material of concern: "The Children's Guardian is not required to make a finding as to how you accessed the material of concern, it is sufficient to find that, on balance, you viewed or otherwise engaged with the material. On your own admission, you did."
In a discussion with CFJ on 4 June 2015, an officer of the Children's Guardian (Annexure C2, Exhibit A1) acknowledged the FWC proceedings and advised the applicant that the Children's Guardian was not assessing whether he was guilty of the allegations, and that the purpose of the check was to assess his risk to the safety of children. CFJ's assertions in paragraphs 1 and 2 of his written Submissions in the current proceedings therefore suggest a lack of understanding on his part about the function and responsibilities of the Children's Guardian (and possibly, the Ombudsman and the School). Alternatively, CFJ's descriptions of the Children's Guardian's actions may be a deliberate misdiagnosis on his part in an attempt to argue that an entity has acted ultra vires. In either event, we do not accept CFJ's submissions.
The applicant's submissions that because he had not been charged or convicted of anything and therefore could not be declared a risk, accentuate his failure to understand the basis on which the Children's Guardian and this Tribunal assesses whether a person poses a risk to the safety of children, and the standard of proof applied in that assessment. As set out earlier in these Reasons, the meaning of "risk" was considered by Young CJ in Eq in the case of Commission for Children and Young People v V [2002] NSWSC 949 at [42].

[47]

Applicant's challenge to the School's notification to the Ombudsman

CFJ has continued to challenge the School's notification to the Ombudsman. As set out in his letter to the Children's Guardian on 20 April 2015 (pp 347-348, Vol 2, Exhibit R1), the applicant asserted that the Ombudsman's notification of concern to the Children's Guardian emanated from a false and unfounded report by the School. Paragraph 6 of CFJ's letter asserted the following: "The fact that I accessed LAWFUL, READILY AVAILABLE pornography sites on the internet in the privacy of my own home does not present reasons for termination and certainly not any reason for reporting to you."
The applicant's assertion that the Ombudsman's Act restricts non-government agencies to only reporting reportable allegations and reportable convictions is not correct. Under s 25D of the Ombudsman Act, the head or other employee of a non-government agency may disclose any information that gives them reason to believe that reportable conduct by an employee of the agency has occurred.
In these Reasons, we have already referred to the definitions of "reportable allegation" and "reportable conduct" as set out in the Ombudsman Act. We have also addressed the inclusion of "sexualised behaviour with or towards children" as "sexual misconduct" as per paragraph 2.2.2 of the Ombudsman's Practice Update.
The applicant's argument that a matter is not reportable to the Ombudsman unless the conduct occurred in the presence of a child fails to acknowledge that sexualised behaviour towards a child includes viewing pornographic images of persons under the age of 18. This is because that activity directly contributes to the creation of demand for child abuse material to be published and indirectly contributes to the harm of children exploited for sexual purpose. CFJ's assertion that "without a child involved a school can report the matter to the police but not to the Ombudsman" defies logic, is not supported by the law and is not accepted.
The applicant's arguments concerning possession of child pornography under the Crimes Act, an offence under the CCA and disqualifying offences under Sch 2 of the WWC Act have no relevance to the circumstances in which the School notified the Ombudsman of a reportable allegation.
In our view, the School's notification to the Ombudsman was warranted in light of the information in the School's knowledge and as provided in the Watt Report. The applicant had confirmed that he was the only person who had access to the laptops and that he had accessed pornography as a sexual release. The School therefore had a statutory obligation to notify the Ombudsman of the reportable allegation within 30 days. Any failure to complete sections of Form A with sufficient detail or accuracy as asserted by the applicant is, in our view, satisfactorily remedied by the School's 4-page document accompanying its submission of Form A.

[48]

Applicant's challenge to the validity of the Ombudsman's "notification of concern"

The applicant has continued to dispute the validity of the Ombudsman's "notification of concern".
The applicant's interpretation of the expression "exercise of functions" under s 25DA of the Ombudsman Act and of the expression "in the course of exercising the Ombudsman's functions" in s 2A(2) of Sch 1 to the WWC Act are set out in laborious submissions which appear to confuse the exercise of functions by both the Ombudsman and the Children's Guardian.
The reference to "exercise of functions" in s 25DA(1) of the Ombudsman Act is a reference to the exercise of the functions by the Children's Guardian (and not the exercise of functions by the Ombudsman): (1)The Ombudsman may disclose the following information to the Children's Guardian for the purpose of the exercise of functions [under the Child Protection (Working with Children) Act 2012; [Tribunal's emphasis]
The reference to "in the course of exercising the Ombudsman's functions" in s 2A(2) of Sch 1 to the WWC Act does not, as asserted by the applicant, refer to the notification from the Ombudsman to the Children's Guardian. It is a reference to the Ombudsman's receipt of information in the course of exercising his functions.
On the basis of his incorrect premise about the exercise of the Ombudsman's functions, CFJ's argument that the Ombudsman's notification of concern was invalid, fails.
Our Reasons have already referred to the Ombudsman's discretion under s 25DA of the Ombudsman Act to disclose information to the Children's Guardian about reports of investigations into reportable conduct by the Ombudsman or a non-government agency and that nothing in s 25DA limits the information that may be disclosed.
The applicant's submission that a child must be in the physical presence of a person against whom an allegation is made in order to have reportable conduct occur, ignores the market for child pornography that is created by persons who view child abuse material and their indirect contribution to the physical, sexual, psychological and emotional harming of children (discussed further under s 30(1)(a) of the WWC Act).
The applicant's submission that the Ombudsman acted outside his jurisdiction in accepting the School's reportable allegation on the grounds that three components were not present is not correct and is not accepted because:

the applicant was an employee at the time the School first put the allegations to him;
as will be discussed further in these Reasons, and having regard to the evidence of an independent forensic expert and a clinician (which we propose to qualify), the 'victims' of the applicant's alleged conduct appeared to be under the age of 18 years at the time of the alleged conduct;
the allegation contained a description of behaviour that was believed to constitute reportable conduct.

[49]

Applicant's challenge to the jurisdiction of the Children's Guardian

CFJ has asserted in a number of submissions that, in carrying out a risk assessment, the Children's Guardian acted ultra vires, i.e. outside her power or authority. The reasons he posits for this submission are not entirely clear, since he makes a number of incorrect premises.
For instance, CFJ asserted that it is the responsibility of the Children's Guardian to determine whether the misconduct record issued to them can be treated as a "notification of concern". This is plainly not correct. As already explained in these Reasons, a mandatory risk assessment was triggered by reason of ss 14 and 15 of the Act and clause 2A of Sch 1 to the Act. Upon receiving the notification of concern, the Children's Guardian was statutorily obliged to undertake a risk assessment. No discretion is afforded to the Children's Guardian to first assess the information received from the Ombudsman and determine whether to treat the notification of concern as valid and whether it warrants a risk assessment.
Further, there is no legislative basis for CFJ's assumption that the Children's Guardian can only proceed to conduct a risk assessment once the alleged conduct has been investigated and once it has been confirmed that the conduct did in fact occur. The 2015 Decision was not reliant upon the School's reportable conduct investigation (or upon an investigation by the Ombudsman).
CFJ asserted that the risk assessment resulting in the 2015 Decision was "disingenuous". He makes this criticism by arguing (incorrectly) the "exercise of functions" and "notification of concern" issues, and asserts that the risk assessor carried out an investigation and made findings which he had no power to do. He asserted that only the Ombudsman or the reporting agency can undertake an investigation and make findings.
The statutory power for the Children's Guardian to carry out investigations is found in s 9(c) of the CG Act. The Children's Guardian is to protect children from harm by (amongst other things): "conducting investigations and inquiries into reports about reportable allegations and convictions considered to be reportable convictions and the response to, and handling of, reports by relevant entities".
In any event, a risk assessment must, of itself, involve an examination of and inquiry into the evidence before an assessor and the drawing of conclusions which could also be referred to as "findings". For instance, the 2015 Decision stated: "…even if the Children's Guardian limited the evidence of weight to matters agreed by both forensic experts, on balance, you have viewed sexual images that demonstrate, on balance, you are a person who should not work with children."
On a proper reading of the Act and the CG Act, the applicant's attempt to put connotations on words in an attempt to suggest the risk assessment resulting in the 2015 Decision was undertaken ultra vires and was therefore illegitimate, fails.

[50]

The issue regarding children in pornographic images as 'victims'

We note that, in paragraph 59 of his Submissions, CFJ acknowledged that children whose images are published for a pornographic purpose are "victims". However, he then asserted that they were not victims of his, but victims of the person who produced the images: "If any of the subjects in the images were children then they certainly would be victims but victims of the person committing the criminal offence of the "production of child pornography".
Under cross-examination, he again acknowledged that if children were depicted in the images they would be victims, but victims of the perpetrator who photographed them, and not as a result of any viewing by CFJ.
CFJ has correctly referred to the offence under s 91 of the Crimes Act to use a child for the production of child abuse material. However, as already discussed, his argument ignores the contribution that is made directly to the production of child abuse material when it is accessed and viewed (by creating demand for the material), and thereby encouraging actual abuse of children by creating a profitable market. Put simply, it is unlawful to produce child abuse material. By viewing the material, a person directly contributes by creating demand for the production of the material and thereby indirectly contributes to the physical, sexual, psychological and emotional harming of a child.
In CFJ (No 1), the Tribunal described at [69] how consumers of pornography provide a financial incentive for the sexual exploitation of young people and that it is those young people whose images are accessed who are the victims of that exploitation: "The victims of exploitation for the purposes of pornography provide income for the pornography industry. Without consumers for that pornography that industry would not exist. Consumers of pornography, as explained by Dr Westmore in BGX v Children's Guardian, therefore provide a financial incentive for exploitation of sexual material which includes the images of young people who look like they are under the age of 18 years."
In Annexure S5 to Exhibit A2 the page relating to URL "wowgirlsblog.com" contains the statement: "Webmasters, Make $$$ with Wow Dollars". Also in Exhibit A2, a note on the page relating to "splashporn.com" appears as "Webmasters Sell Traffic Buy Traffic". A similar note appears on "mylovedbabes.com" as "Webmasters Trade Traffic Buy/Sell Traffic". Whilst these statements are acknowledged to be representative of the material viewed by the applicant, he would be well aware that pornography is a profitable industry, as demonstrated by his oral evidence (referred to below) about the use of advertising on websites.

[51]

Applicant's challenge to how age of 'victims' is assessed

CFJ advanced an argument that victims need to be both identifiable and children at the time the conduct occurred (meaning at the time the images are viewed and not at the time the photographs were taken or published). He also argued that persons whose images were accessed could be deceased and therefore could not possibly be deemed to be victims. In particular, he asserted that the age of a victim at the time that he viewed an image would be the age of the victim at the time of photography plus the age of the photograph.
The language in s 91 of the Crimes Act is very explicit. It is the age of the child at the time the child is used for the production of child abuse material that creates the offence. When a subject is photographed, the image is 'captured in time' for the duration of time that it is published and accessed. We note that some of the compliance statements upon which the applicant sought to rely as to the age of subjects in the representative published images, also refer to the age of subjects "at the time of the creation of such depictions" or wording such as appears on ALS Scan: "All models were at least 18 years of age when photographed" (Tribunal's emphasis). The applicant's reasoning is flawed. His argument has no merit and is rejected.
Likewise, CFJ's argument that because the age of the photos is data that does not exist, making it impossible for the Tribunal to determine subsections 30(1)(d),(e) and (f) of the Act, is based on flawed reasoning and is rejected.
We note the applicant's objection to reliance upon the "Tanner Scale" which is used by clinicians for estimating development or physiologic age for medical, educational and sports purposes, having regard to the known chronological age of the subject person (p279, Vol 1, Exhibit R1). We also note that the School engaged a clinician with expertise in gynaecology to assess some of the images viewed by the applicant. Using "Tanner" staging as a reference point, the clinician was of the view that 53% of the 118 URLs inspected contained images of females with an average age of 16 or less, and 89% looked to be under the age of 18 years. The clinician also believed that 9 URLs contained images of very young females. In light of Dr Tanner's caveat on the use by physicians and paediatricians of his staging methodology to estimate age, but recognising that the clinician engaged by the School had expertise in gynaecology and would therefore have had relevant expertise in making a general assessment of female physical maturation, we only give this information a small amount of weight. We have not taken into account the notes written on the representative images (Exhibits A2 and A3) that refer to Tanner staging.
However, having viewed the 'representative' images in material filed by the applicant, we do not support the applicant's own subjective assessment of the age of some subjects. There may well be subjects who are older than 18, but they project an image of being much younger. The appearance of a person looking like a child, or implied to be a child, is relevant to an assessment of whether the subject as projected in an image is under 18 years of age. This, coupled with the names associated with some of the websites and titles accessed, suggest that some of the representative images were of teenagers under the age of 18 and, in some instances, younger than 16.

[52]

Compliance statements and disclaimers

CFJ took the Tribunal to a page in Exhibit A2 depicting an image of two females via the URL "ALS Scan" with a heading "Sex picnic with lolitas" and an immediately following page containing a compliance statement. The compliance statement was in the following terms: "18 U.S.C. 257 Record-Keeping Requirements Compliance Statement Warning - This site contains adult material of a sexual nature - you must be of legal age in your area to view this material. All materials on alsscan.com, are copyright [copyright symbol] 1996 - 2018 alsscan.com. Payments processed by ECHST.NET. All models were at least 18 years of age when photographed."
The applicant was selective in taking the Tribunal to the compliance statement of ALS Scan page "Sex picnic with lolitas". Within Annexure S5 of Exhibit A2 are a number of compliance statements as well as compliance statements accompanied by a disclaimer to the effect that the website has no control over the content of the pages and that they take no responsibility for the content on any linked websites.
A typical compliance statement accompanied by a disclaimer is set out below: "Disclaimer: All models on this website are 18 years or older. TeenPort.com has a zero-tolerance policy against illegal pornography. All galleries and links are provided by 3rd parties. We have no control over the content of these pages. We take no responsibility for the content on any website which we link to, please use your own discretion." [Tribunal's emphasis]
A typical compliance statement without a disclaimer is as follows: "18 U.S.C. Section 2257 Compliance Notice. All of the models, actors, actresses and other persons that appear in any visual depiction of actual sexually explicit conduct appearing or otherwise contained in the following website were over the age of eighteen years at the time of the creation of such depictions." [Tribunal's emphasis]
We again acknowledge that the material in Exhibit A2 is representative. Nonetheless, the applicant tendered the material and sought to rely upon it. On that basis, we note that of those compliance statements appearing in the representative material, more than half are accompanied by a disclaimer that photo galleries and links are provided by third parties, that the website owner/manager has no control over the content of the pages and no control over the content of any linked website. Nine statements did not contain disclaimers although three contained additional qualifying statements that the person accessing the material released the website from any liability and acknowledged that they accessed the material voluntarily and accepted responsibility for that action.
Since CFJ has asserted that most of the websites he accessed were as a result of having been redirected to them, his argument that he relied upon compliance statements as evidence that the photographed subjects were 18 years or older is substantially undermined by the disclaimers, and cannot be accepted or sustained.

[55]

Demonstrated interest in viewing young females

Annexure Z4, Exhibit A3 can only be regarded as representative of the material viewed by the applicant. Annexure Z4 contains 10 pages comprising galleries of images (www.teenport.com) with an annotation on page 1 that explicitly describes the website as focusing on teens and the language used (such as "innocence and tenderness" and "fresh") is suggestive that images of young teens are accessible: "What are you looking for? What makes you lustful, attracts you? Passion and sexuality, innocence and tenderness, beauty and sensuality… [indecipherable] in these words … Teen sex! This site is dedicated to beautiful teen girls that pose nude, showing their perfect fresh bodies…"
Page 10 of Annexure Z4 contains a number of references to teens as being subject matter that is accessible on the website:

"Unseen erotic teens"
"Erotic beauty teens"
"Teen porn"
"Nude teens"
"Teen sex"
"Teens MPLStudios"
"Teen Girls"

It is a matter of concern that the applicant was engaged in teaching teenagers and, at the same time, was accessing pornographic material with descriptors of an educative environment. Annexure Z2 in Exhibit A3 references a number of video descriptors or terms referable to a school environment (URL https://www.bang.com/videos?channel=schoolgirl), such as:

"Learning-calculus-by-riding-cock"
"alex-coal-would-rather-fuck-her-college-professors-to-pass-class-than-study"
"sphinx-begs-her-college-professor-to-teach-her-to-fuck"

In the same Annexure Z2 the same website references cross-generational sexual encounters with multiple references to "stepdaddie", indicating an interest in younger females.
Annexure Z3, Exhibit A3 appears to refer to university girls (who are older than 18) working in go-go bars in Pattaya, Thailand, yet uses terms such as "young meat".
The applicant took the Tribunal to a page in Annexure S5, Exhibit A2, the page bearing a hand-written annotation "127 different to description", to seek to demonstrate that he had a preference for buxom females. The page contained 36 images, and the applicant pointed out 5 or 6 images to support his argument.
However, the remaining 30 or so representative images were not commented upon by the applicant, and his argument was not regarded as having a great deal of force or persuasion in light of the volume of representative images presented in Annexure S5, Exhibit A2 and Annexure Z4, Exhibit A3 who appeared to be, or projected any image of being, young under-developed girls.
The School's reportable conduct investigation found that the volume of URLs that self-identified as young person pornography was very high, with 2084 unique URLs and more than 41,000 images accessed over the 5 month period. Relying on the Watt Report, the School concluded that the access method used by the applicant was by clicking a link or equivalent user action.
Paragraph 8 of the GM's statement (p1545, Vol 3 Exhibit R1) identified sixteen descriptors which had been used with CFJ's login to access young person pornographic material. The use of the word "teen" is noted to be particularly prevalent in the descriptors. Under cross-examination, in response to a question whether he had turned his mind to whether accessing sites with "teen" in the title might return images of girls under the age of 18, the applicant gave oral evidence that, in his view, 18 and 19 year olds are teens. He did not make reference to "teens" as including 13 to 17 year olds. He said, with reference to the images in Annexure S5, Exhibit A2, that he relied upon compliance statements and advertising on sites. He added that "teen" is not parlance for "child".
The applicant gave oral evidence that he relied upon advertising to distinguish between adult pornography and child pornography on the basis that child pornography is accessed via the "dark web" where there is no advertising because it is not legally published material. He said that adult websites carry advertising for business purposes.
In giving his evidence, the applicant accepted that child pornography is illegal. He also said that he has no interest in child pornography. He added that he imagined people who are interested in child pornography have an interest in children and may act out and abuse a child.

[56]

Experts' reports

We have earlier referred to the matters disclosed in the Watt Report, the Klein Report and the Watt Supplementary Report.
In our overall evaluation of the expert evidence, it is pertinent to note that Mr Klein did not examine the laptops and did not analyse the data himself. His report was prepared in response to the Watt Report and the School's response filed in the FWC proceedings. The amount of weight to be afforded to the Klein Report is therefore limited.
Mr Klein's comment that he thought it unusual for the applicant to provide his laptops to the School's IT department on several occasions if he knowingly and regularly used them to access significant volumes of child abuse material, fails to recognise that the applicant needed the laptops to carry out his duties and had no option but to submit them for rectification when they were not functioning. The applicant was also concerned that his children might see the material, something he wanted to avoid.
Both experts agreed that the webpages identified in the Watt Report had been accessed. Both experts concluded that the search terms used were likely to return pages with younger people. Mr Klein also observed that titles such as "school girls", "young girls", "young teens" (among others) may contain sexual images of children under the age of 18.
With respect to the issue of private browsing, the applicant's evidence under cross-examination when asked if he had used private browsing mode to mask his activities, was that he had tried it as a learning exercise. He said that he may have tried it, but he gave up on it. It is noteworthy that the Watt Supplementary Report disclosed that laptop 2 showed that Google Incognito mode had been used on 19 November 2014. This was the day of CFJ's meeting with the Principal and Deputy Principal at which he is alleged to have promised not to use the laptop for inappropriate browsing. The applicant's evidence was that once he realised the allegations against him concerned his viewing images of under-age girls, he was in a state of shock and panic. He said he had to use the laptop to access some of the websites in order to check the allegations.

[58]

The "lolita" records

With respect to "lolita" records, CFJ asserted that he had never known the name "lolita" and did not search for that name. The Klein Report supported the applicant on this point, noting that none of the search terms recovered from the laptop included the word "lolita".
On 22 January 2015, the applicant provided comments on the Watt Report (p 442, Vol 2, Exhibit R1). CFJ asserted that the five "lolita" records were all the same and that they were all accessed at the same time, listed as 14:23 on 26 September 2014 in Annexure E to the Watt Report (p 615, Vol 2, Exhibit R1). On our observation of the record, each of the five "lolita" entries is actually recorded under the URL "www.hotalsscan.com" but with an individual reference in terms of the HyperText Markup Language (HTML) element, and each was viewed at five different times on 26 September 2014, as set out below:

14:22:02
14:23:10
14:23:36
14:23:50
14:23:52

Annexure S5 in Exhibit A2 filed on behalf of the applicant contains a copy of a page titled "Sex picnic with lolitas @ ALS Scan" from the URL "www.hotalsscan.com" depicting two young girls (one fully naked and another semi-naked) playing croquet. The names of the girls appear (if, indeed, those names reveal their true identity) and arguably the girls are young and possibly under the age of 18. The applicant made a hand-written note referring to the compliance statement on the ALS Scan website that the site contained adult material of a sexual nature and that all models were at least 18 years of age when photographed [Tribunal's emphasis]. The applicant also noted that ALS Scan is a website listed in Annexure D to the Watt Report, suggesting Dr Watt was trying to "hide" that fact. However, that criticism has no merit since Annexure D is a list of all pornographic websites visited including adult material. Annexure E to the Watt Report, on the other hand, is a list of websites visited that are young person-specific.
We are persuaded by the opinion of Dr Watt, that access to "lolita" images was by way of link and that the link was deliberately accessed multiple times, as opposed to a redirection caused by malware or an automatic redirection from another link or "pop-up" pages.

[65]

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: s 30(1)(a)

Child pornography is considered to be a very serious offence. Under s 91G of the Crimes Act, it is an offence to use children for the production of child abuse material. Under s 227 of the Care Act, an offence is created in relation to child and young person sexual abuse.
CFJ has not been charged with any criminal offence relating to possession of child abuse material. He has no criminal history in Australia and has never been charged with any offences. No allegation was made that CFJ had committed an offence under s 91G of the Crimes Act or under s 227 of the Care Act. He was, however, the subject of a reportable conduct allegation to the Ombudsman. The allegation causing the notification to the Ombudsman and the risk assessment by the Children's Guardian is of a serious, sexual and child nature that occurred in the context of the applicant's child related employment.
The reportable conduct allegation to the Ombudsman relied upon the Watt Report. The applicant's conduct was alleged to constitute sexualised behaviour towards, and involving, young people that he knew or ought to have known was unacceptable in his role as a secondary teacher.
After notifying the Ombudsman of the reportable allegation, the School carried out an investigation and found on the balance of probabilities that the allegation was sustained, notifying the applicant of this finding by letter dated 26 October 2015.
The production of child abuse material is unlawful since it constitutes abuse of a child. Persons who view such material create a profitable market for the production of child abuse material and, in so doing, indirectly contribute to the physical, sexual, psychological and emotional harming of children. Further, it is relevant to consider that, as a result of the creation of a profitable market, viewing child abuse material may encourage actual abuse of children since some people who commence with "hands off" behaviour may progress to "hands-on" behaviour (as recognised by the applicant under cross-examination).
As noted in BGX v Children's Guardian [2014] NSWCATAD 173 (BGX) at [69], without consumers for child abuse material, that aspect of the pornography industry would not exist. In assessing the risk that a person poses to the safety of children, the decision of the Tribunal in BGX at [50], relied upon the psychiatric opinion and evidence of Dr Westmore to acknowledge the connection between "hands off" viewers of child abuse material and the resultant market which encourages "hands-on" child abusers.
Also in BGX at [53], Dr Westmore opined that the "hands off" users of material encourage actual abuse of children by creating a profitable market. In Dr Westmore's opinion, "hands off" behaviour is "child abuse behaviour" at [53].
The Tribunal noted at [51], as a matter of importance, that Dr Westmore agreed that if the applicant in BGX was accessing images of underage children for his sexual stimulation, the psychiatrist would review his opinion as to whether that applicant would be classified as meeting the criteria for a diagnosis of paedophilia. Dr Westmore opined that the risk of returning to use that type of material would increase if it was accessed for the purpose of sexual stimulation.
CFJ admitted that he was the only person who had access to or used the laptops on which the pornographic material was found and that he accessed pornographic material for sexual satisfaction.
No allegation has been made against CFJ that he produced child abuse material. The allegation against CFJ is that he viewed child abuse material and that he did so deliberately as opposed to inadvertently or involuntarily. Even if the images of girls under the age of 18 or appearing to be under the age of 18 were viewed as a result of redirection from other websites, as opposed to CFJ actively entering search terms to result in images of under-age girls, his pattern of viewing was consistently high. If he was not interested in viewing under-age girls, he would not have spent so much time in that activity.

[73]

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

The applicant sought to apply a flawed grammatical construction to this sub-section to argue that there can be no impact of repetition if there was no impact on an identifiable victim as a result of the original conduct. The sub-section refers to the impact on "children" (in the plural sense), and does not necessarily connect the impact upon an original victim with the likelihood of repeated conduct on that same victim. We do not accept this faulty construction and reasoning.
There is no recent psychological evidence before this Tribunal to address the likelihood of the applicant repeating the conduct which resulted in the reportable conduct allegation and finding. There is no expert evidence before us to address the applicant's attitude to child abuse material and his long-standing relationship with pornography (acknowledged by CFJ to have been an issue for which he sought counselling in 2003 and 2004). Other than the report from Dr Powell (see below), there is no expert psychological assessment before us to assist in determining whether CFJ poses a risk to the safety of children.
As a matter of historical note, the School arranged for the applicant to consult with Dr Powell, whose report dated 26 November 2015 disclosed that CFJ had attended 11 counselling sessions. In his statement dated 22 March 2015 prepared in anticipation of the FWC proceedings, the applicant said that he was seeing Dr Powell to help him better understand the reasons why he was attracted to looking at pornography so that he no longer feels the need to view pornographic websites. Dr Powell reported on personality testing that CFJ had asked to be undertaken for the purpose shedding light on the accuracy of the allegations against him and providing indications of the risk profile of a person with CFJ's personality. Dr Powell advised CFJ there were no specific tests that could accurately predict the likelihood of someone being a risk for either sexual interference with children, or the viewing of child pornography.
Nonetheless, Dr Powell suggested that a Personality Assessment Instrument (PAI) could be used to identify any personality factors that correlate with the behaviours of concern. Dr Powell compared CFJ's results from the PAI testing with research on child-sex offenders and people who view child-sex pornography. The research referred to in Dr Powell's report used the PAI instrument to compare the personality profiles of a sample of Internet child-pornography offenders with a sample of non-offending people. Two Interpersonal scales in the PAI, Dominance and Warmth, were identified as significant points of difference between the two groups. Dr Powell noted that CFJ's results in the Dominance and Warmth scales were in the normal range and did not suggest marked relational impairment. He concluded that CFJ's PAI profile was significantly different to the general PAI depictions of people found to have viewed child pornography. Whilst Dr Powell opined that there was no reason, based on CFJ's PAI results, to conclude that he should be classified as a child-sex offender or someone who views child pornography, he noted that it is not possible to accurately predict the risk.
We note from the transcript of proceedings in CFJ (No 1) that Dr Powell was attending an overseas conference at the time of the hearing and was not available for cross-examination. However, Dr Powell's clinical notes subpoenaed for those proceedings disclosed that the applicant was still using internet pornography during therapy. In our view, Dr Powell's report cannot be relied upon as an accurate predictive opinion on the likelihood of CFJ's repetition of the conduct that triggered the risk assessment.
Under cross examination, CFJ said that he had attended Sex Addicts Anonymous a long time ago. He also said that he had engaged with his friend, Mr K, in around 2003 to install a porn filter on his personal computer. He conceded that, as a Christian, he felt that looking at nude pictures was wrong, and he didn't want to be addicted to anything. Mr K had agreed to be CFJ's "accountability partner" in the management of his relationship with pornography. A porn filter was to be loaded onto CFJ's computer for the purpose of filtering content and to also send alerts and copies of URLs to the accountability partner who formed the view that CFJ's taste was towards "rather buxom, full figured women". We do not allocate a great deal of weight to this personal reference written almost 7 years ago and the applicant acknowledged in cross examination that he could not remember if the porn filter was in fact installed. His recollection was that if it did, the arrangement only lasted for around 6 months.
We note that CFJ's WWCC Submission dated 17 March 2021 did not provide any responses to questions about whether he had attended any courses or programs, or had treatment from a professional, or taken any other action to help address his behaviour. No information was provided to demonstrate any lifestyle or behavioural changes to mitigate against a repetition of the conduct that triggered the School's notification to the Ombudsman and the Children's Guardian's risk assessment. Instead, his response asserted that the school had lodged false and malicious reports against him and that the Ombudsman and Children's Guardian had mishandled his matter.
According to the Deputy Principal's witness statement prepared for FWC proceedings, staff of the School are required to attend Child Protection training and complete an online examination to show their understanding of the legislation and requirements on an ongoing basis. The applicant acknowledged in cross examination that he had received training in child protection during his employment with the School, although his recollection of the content of the training was not strong. When taken to a record of training certifying his attendance at a two hour course titled "Child Protection: Keeping them safe" on 2 August 2010 (page 1168, Vol 2, Exhibit R1) the applicant was unable to confirm that he had in fact attended.
Likewise, with respect to a one hour child protection training session on 2 July 2013, the applicant could not remember whether he had attended, and said that he had been highly anxious at that period in his life, suffering separation anxiety from his children. When it was pointed out that the training was in 2010 and 2013, the applicant maintained that he was suffering stress in 2010 due to parents' complaints about his performance. Under questioning whether the child protection training provided by the School addressed child pornography, the applicant responded that if it did, it was in the form of multiple choice questions.
Further, in response to the question "What do you think is important in helping keep children safe?", CFJ's answer was non-responsive to the question, and expressed self-adulation about how he had conducted himself in a previous Tribunal hearing. His four-paged additional submission made no mention of the need to protect children and keep them safe. In light of CFJ's experience as a teacher for around 19 years and child protection training, we find his lack of response to the question to be cause for concern about his capacity to act protectively towards children.
We acknowledge that CFJ has some insight into his relationship with pornography as demonstrated by his willingness to install a porn filter on his own computer and for his friend (Mr K, also a user of pornography) to be his 'accountability partner'. However, CFJ has not demonstrated insight into the harm caused by his participation in the supply and demand cycle of child abuse material which seeks to exploit vulnerable children in a sexual manner. The applicant deflects accountability for his participation by arguing that websites re-directed him to other websites (as opposed to him actively seeking them) and by arguing that there are no 'victims' (since he asserts they cannot be identified and their age cannot be calculated without knowing the age of the photoghraphs, an argument we have rejected) and that if there are any 'victims', all responsibility lies with the perpetrators who produced the images. These deflections suggest that the applicant is not prepared to accept the nature and impact of his alleged conduct and how that conduct causes concern as to whether he is a person who can be assessed as not posing a real and appreciable risk to the safety of children.
There is no acknowledgement by the applicant of the inappropriate nature of the alleged conduct and no indication from him that he intends to cease clicking on links that will expose him to websites focusing on teen or teen-like images of females. There is no information before the Tribunal to be satisfied that the applicant has measures in place to ensure his conduct will not transgress into the workplace and that he will not sexualise female students (aged from 12 to 17) within a teaching environment.

[78]

Conclusion

This Tribunal must have regard to the paramount consideration under s 4 of the Act, namely, the safety, welfare and well-being of children and protecting them from child abuse. Further, and importantly, this Tribunal has regard to the conduct of the applicant which goes beyond the scope of the alleged reportable conduct and encompasses his conduct since the time of the reportable conduct allegation: s 63(1) of the ADR Act.
It is apparent to this Tribunal that the applicant has no understanding or appreciation of his contribution to the harm caused to children in being sexually exploited for pornographic purpose. This lack of understanding, coupled with CFJ's adherence to his argument that images of underage children were not accessed deliberately by him but as a result of involuntary or inadvertent redirections and pop-ups, appears to form the basis for his argument that there are no 'victims' for which he has responsibility and therefore no allegations against him have legitimacy.
The evidence before this Tribunal suggests that the applicant has a proclivity to viewing sexually explicit images of schoolgirls and teenagers. The issue for determination is whether CFJ poses a risk to children, including females up to the age of 18 years, by reason of his accessing pornography in his own personal time. CFJ's acknowledgments that without viewing pornography he would be a constant state of sexual frustration, and that viewing pornography provides him with a release, raises a number of concerns.
They include a concern that, in accessing websites which sexualise females with an emphasis on images of teenage or teenage-like females, and becoming sexually aroused, the applicant may have become desensitised to the harm done to children who are exploited for pornographic purpose.
Another concern is that, given the applicant's denial of conduct and likely desensitisation, there is potential for CFJ's behaviour to transgress into the workplace. As a secondary school teacher, the applicant would come into contact with teenage girls on a daily basis. This Tribunal acknowledges that there is no evidence before it of inappropriate conduct with a student. However, the potential for such a transgression is real and not fanciful (consistent with the reasoning in CXZ.)
The applicant's response to the School that his "desire to appreciate beauty in the female form" is a "God given drive" and that he has "never viewed looking at the female form as being unnatural" suggests that CFJ has no understanding of the harm caused to children as a result of their sexualisation through pornography. His attitudes, as expressed in his response, are themselves a matter of concern since they could cause harm if expressed to teenagers under the age of 18 in his role as a secondary teacher.
These concerns are heightened because the applicant has engaged in viewing pornography for at least 20 years, has no insight into his conduct, has not reflected upon it, and has not implemented any measures to satisfy this Tribunal that he can manage his behaviour so as to not present a risk to the safety of children in his professional life. In his own words, when his own personal computer stopped functioning the "temptation" to use his work laptop "became too much", suggesting his need for pornography is a matter over which he is unable to exercise restraint.
There is no evidence of mitigation of the risks associated with CFJ's previous conduct which triggered the need for risk assessment. The passage of time is not, in and of itself, sufficient to demonstrate sustained behavioural change and thereby mitigate risk, particularly in the case of this applicant who has accessed pornography for long period of time.
The preponderance of evidence before the Tribunal is that the applicant poses a likely risk to the safety of children if he were to be engaged in child related employment.
For the reasons set out in this decision, we are satisfied that the applicant's conduct does pose a real and appreciable risk to the safety of children. It is therefore not necessary for us to consider the matters referred to in s 30(1A) of the Act.
The Tribunal is of the view that the correct and preferable decision is to affirm the respondent's Decision not to grant the applicant a WWCC clearance.

CFJ v Children's Guardian

At a glance

Court

Decision date

Source

Judgment (80 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (30)

Cited By (1)