CHT v Children's Guardian

Role of the Tribunal

1. Section 28 of the Act makes provision for review, by the Tribunal, of a decision that a person is a disqualified person, by declaring that he or she is not to be treated as a disqualified person. Section 28 provides: 28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions.
2. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. The section provides that: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the Applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary.
3. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.
4. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.
5. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.
6. At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so.
7. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "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."

Burden of proof

1. As the Applicant is a disqualified person seeking an enabling order pursuant to section 28 of the Act, there is a presumption that the Applicant poses a risk to the safety of children.
2. The issue to be decided
3. The issue for determination by the Tribunal is whether the applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children, and accordingly, whether he should (or should not) be granted an enabling order.

Risk to the safety of children

1. The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.""
2. These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE), at [26].
3. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an Applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."
4. These observations of Young CJ (in Equity) have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.
5. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

Evidence before the Tribunal

1. The Respondent tendered into evidence documents gathered by the Respondent in relation to the Applicant's initial application in 2012. As well, the Respondent produced documents gathered in relation to the current application, including responses from employers and community organisations, and documents provided by government departments and agencies, including the NSW Police, the courts, Corrective Services, and Family and Community Services.
2. The Applicant relied on his application, a written statement dated 13 May 2016, and reports of Dr Emma Collins, Clinical Psychologist, dated 5 May 2016 and 26 July 2016. The Applicant also relied on various documents, including character references, which he had filed in relation to his initial application in 2012, and which were reproduced in the Respondent's bundle of documents. The Applicant and Dr Collins gave oral evidence at the hearing and were cross-examined by Counsel for the Respondent.
3. The evidence is now considered under each of the subheadings of section 30(1) of the Act, each of which the Tribunal must consider in its determination of the application.

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

1. The matter that caused the refusal of the Applicant's application for a clearance was his conviction in 2007 for possession of child pornography. The police facts indicate that in 2006 NSW Police commenced an investigation into child pornography involving employees of a state government entity who were subsequently charged and convicted of offences. Further investigations led to the identification of the Applicant, and in 2007, search warrants were executed on the Applicant's home and work premises. Forty six floppy disks were seized by police and revealed pornographic images and video recordings of children under the age of 16 engaged in sexual activity. The images, totalling 920 images considered to be child pornography, depicted children under the age of five years performing oral sex upon adult males, adult males engaged in penetrative sexual intercourse with children under the age of 10 years, an adult female engaged in sexual intercourse with a boy aged about 12 years, and naked children aged between the ages of six to 16 in sexually suggestive poses.
2. In addition, the Applicant had in his possession three video recordings depicting children of various ages engaging in sexual acts with adults. One tape contained footage of a child in a school uniform aged approximately 14 years sitting in such a manner that her underpants were visible; with the focus on that area of her body. The filming appears to be from a vehicle, and it was apparent that the child was unaware she was being filmed.
3. Following the seizure of the material, the Applicant participated in a police record of interview during which he made admissions to the possession of child pornography. In particular, the Applicant stated he had received the child pornography from a co-accused (Mr L) who he had met via advertisements in adult erotic magazines, and with whom he corresponded with for about 12 months between 2001 and 2002. The Applicant received the material via a postal box he had set up in a false name, and which was closed in 2005. When questioned by police, the Applicant admitted viewing the child pornography at home and work. He admitted knowing this to be wrong and he said he did it for personal curiosity and gratification.
4. The Applicant pleaded guilty to the offence of possession of child pornography and was sentenced to 300 hours of community service. Following his conviction in 2007, he was placed on the Child Protection Register; on which he remained until July 2015.
5. In addition to the police facts and court records, the Respondent filed material produced by the NSW Police under summons. They include written correspondence between the Applicant and Mr L, a co-accused. The correspondence includes three letters from the Applicant to Mr L written in 2004. The letters are extremely disturbing in that they describe in graphic detail acts of sexual abuse of children. In one letter, the Applicant describes in explicit detail how he engaged in sexual activities with a 13 year old girl in whose home he had spent the night. In another letter he described his own experience of sexual abuse by a friend's father at the age of 10 or 11.
6. In his evidence before the Tribunal, the Applicant admitted to corresponding with Mr L from 1995 to 2004. He admitted to writing the three letters that were produced by the NSW Police under summons. The Applicant denied engaging in sexual activities with a 13 year girl, and has never been charged with any "contact" offence against a child. However, the Applicant admitted that parts of the contents of the letter were factual in that he did meet a 13 year old girl at the venue described in his letter, and that she did in fact show him a tattoo on her bottom. However, he stated that his sexual activities with the girl as described in his letter were "fantasy" only. He said he wrote such things in the hope that Mr L would provide him with opportunities to engage in threesomes (with consenting adults).
7. The Applicant's offending is serious and the evidence indicates his interest in child pornography stemmed over a number of years, involving the receipt of significant amounts of child pornography and the association and engagement with other child pornography offenders.
8. The possession of child pornography helps to maintain an active market for its production and dissemination. It is undisputed that the victims of child pornography (the children who are the subject of the images and recordings) may be severely impacted by their experiences.
9. In 2007, the offence of possession of child pornography was punishable by a maximum penalty of 5 years' imprisonment. However, it is of note that the equivalent offence today is now punishable by 10 years' imprisonment, and the offence of possession of such material is not, as was previously the case, subject to a lower maximum penalty than for the offences of production and dissemination of such material. This change in maximum penalty highlights the increased concern held by the legislators and the community generally about the existence of child pornography.

(b) The period of time since the matter occurred and the conduct of the Applicant since that time

1. The offence was committed approximately 9.5 years ago. The Applicant admitted receiving the child pornography material in the preceding years, and retaining it until it was seized by police in 2007.
2. Following his conviction in 2007, the Applicant was convicted of two counts of make false statement contrary to section 33D of the Commission for Children and Young People Act 1998. This offending related to the Applicant's application for child related employment; which he was prohibited from undertaking as a result of his prior conviction for a serious sex offence and by virtue of his status as a person on the Child Protection Register.
3. The police facts indicate that shortly after his conviction in 2007, the Applicant applied for employment as a training manager. This role involved attendance at various places, including where children would be present, and inter alia, at children's camps and activities. As part of his application for employment in mid-2007, the Applicant completed two forms which clearly stated that he was not to undertake child related employment. In a police record of interview, the Applicant admitted making the relevant statement. However he said he had advised his employer of his conviction and was of the belief that the employer would be told by authorities that he (the applicant) could not deal with children. The Applicant was convicted and fined a total of $450.
4. Since 2008, the Applicant has not been convicted of any further criminal offences. At the time of his removal from the Child Protection Register in 2015, he was considered not to represent a risk to the community.
5. At the time of his arrest for the child pornography offence in 2007, the Applicant held a senior position within the NSW emergency services, with whom he had been employed for approximately 23 years. Due to his conviction, the Applicant's employment was terminated. Since that time, the Applicant has been engaged in employment in training services. He has held his current role as a Health, Safety Environment and Training Coordinator since 2009.
6. The Applicant has also been heavily involved in sports coaching including at a high level for which he has received remuneration. His coaching continued until about 2011. His disqualifying conviction was a factor in the cessation of that role, notwithstanding he had been coaching only adult teams after his conviction for the disqualifying offence. In 2016, the Applicant recommenced a casual coaching role of an adult men's team. There is no evidence of the Applicant engaging in any inappropriate conduct during his involvement in sport.

(c) The age of the Applicant at the time the matters occurred

1. At the time of commission of the disqualifying offence, the Applicant was aged 46 years.

(d) The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim

1. Material produced by the Respondent, including initial versions of the police facts and a COPS summary indicate that the victims of the child pornography were of various ages, ranging from infancy to 16 years. It included children depicted in sexual activities with adult persons, and were considered by police to be extremely graphic and disturbing in nature.
2. As children and therefore unable to give consent, the victims were especially vulnerable, and their involvement in pornography, whether knowing or unknowing, was a clear violation of their rights.

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

1. Given the various ages of the children in the pornographic material, which was voluminous, the precise age differences between the victims and the Applicant are not known. However, it is evident that all of the victims were children. Because the Applicant was aged 46 years at the time of offending, the age difference was considerable.

(f) Whether the Applicant knew, or could reasonably have known, that the victim was a child

1. As indicated in his admissions to police and to the Tribunal, the Applicant was aware the victims were children.

(g)The Applicant's present age

1. At the time of the Tribunal hearing, the Applicant was 55 years of age.

(h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the matter occurred

1. Aside from the disqualifying offence and the subsequent false statement offences, the Applicant has no other criminal convictions.
2. Further details of the Applicant's conduct since his 2007 conviction are detailed in earlier paragraphs.

(i) The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition

1. The Tribunal had before it various professional evidence in relation to the Applicant's risk of reoffending. It includes reports of Ms Narci Sutton, Psychologist, and Professor Stephen Woods, Forensic Psychologist, both of whom reviewed the Applicant following his charge in 2007. Both reports refer to the Applicant having suffered sexual abuse as a child, and to his engagement with other victims of childhood sexual abuse within the pornography community.
2. Ms Sutton suggested the Applicant in 2007 remained at high risk of reoffending unless his treatment needs were addressed. Ms Sutton pointed to the Applicant's long history of pornography use that appeared to have become more deviant over time, the Applicant's engagement with fellow child abuse victims within the pornography community, and his propensity to use pornography as a means of managing stress or uncomfortable feelings.
3. Professor Woods who treated the Applicant in 2007 recommended at that time that the Applicant "will require ongoing psychological treatment in order to address not only the consequences of his actions, but also the sexual assault suffered at age twelve (12) years and the resultant PTSD".
4. As indicated in earlier paragraphs of these Reasons, the Applicant previously made an application for a clearance in 2012, and following its refusal, he sought an order enabling him to receive a clearance. For the purposes of those proceedings, the Applicant was assessed by Professor Woods on 27 June 2012 as being at minimal risk of reoffending.
5. At the request of the Respondent's predecessor, the Applicant was assessed by a forensic psychiatrist, Professor David M Greenberg, on 1 December 2012 and 9 December 2012. In his risk assessment report concerning the Applicant, Professor Greenberg stated: His risk of re-offending cannot be eliminated but possible could be moderated with further psychological counselling specifically for sexual offending but may also include other issues such as his issues with his own sexual victimisation.
6. In March 2013, the Applicant withdrew his application before the Tribunal.
7. In January 2015, the Applicant commenced treatment with Dr Emma Collins, Clinical Psychologist. At the time of the Tribunal hearing on 29 July 2016, the Applicant had attended approximately 30 treatment sessions with Dr Collins.
8. Dr Collins prepared a report dated 5 May 2016 entitled "Psychological Treatment and Risk Assessment Report". Dr Collins also prepared a supplementary report dated 26 July 2016. Dr Collin's evidence was based both on her treatment of the Applicant and her subsequent risk assessment of the Applicant for the purposes of the Tribunal proceedings.

Risk Assessment

1. Dr Collins conducted risk assessment of the Applicant utilising two types of tools; the Risk Matrix 2000/s (which may be used with respect to internet sexual offences) and the Risk for Sexual Violence Protocol (RSVP) (which assesses both static and dynamic risk factors for sexual offending). Dr Collins reported the Applicant received a score of zero on the RM2000/2 which placed him in the low risk category.
2. Upon assessment of the Applicant using the RSVP, Dr Collins suggested the Applicant poses a low risk of reoffending. In particular, Dr Collins identified the Applicant's protective factors as including the Applicant's consistent employment history, his lack of major mental illness or psychopathic personality disorder; lack of substance abuse issues, lack of any other criminal history, lack of attitudes supportive of sexual violence; absence of violent or suicidal ideation, long-term prosocial relationships and networks, no issues with self-awareness and no evidence of sexual deviance. In addition, Dr Collins also reported other protective factors including the Applicant's self-awareness and openness in discussing his offending behaviour, his completion of his community treatment order and supervision, and his participation in offence-specific treatment. The Applicant's motivation and problem-solving, his marital relationship, healthy sexual interest and reduction in masturbation were also identified by Dr Collins as protective factors supportive of desistance.
3. Dr Collins identified certain factors that are seen to increase the Applicant's risk of re-offence, including his history of being sexually abused as a child and which led to an interest in seeking out other victims and abusers. Dr Collins further indicated that although there is a lack of evidence that the Applicant is sexually deviant, he impressed as sexually preoccupied, with "very problematic" sexual behaviour at the time of his offending.
4. At the time of making her report Dr Collins did not have available to her the Applicant's letters to Mr L. Nor was she made aware of a further incident of sexual abuse the Applicant suffered as a child (to which the Applicant referred in one of his letters to Mr L) and which he admitted during cross examination did in fact occur. Dr Collins, having subsequently been made aware of that material and the Applicant's disclosures, said that she would want to discuss those matters with the Applicant and give them further consideration. Dr Collins also conceded that the Applicant's continued assertion that his child pornography offending was as a result of curiosity and hoarding is too simplistic a response.
5. However, Dr Collins said that minimisation is common in sex offenders and that the additional information did not necessarily change her opinion of the Applicant's risk. Nor did Dr Collins change her view that there was insufficient evidence to indicate historical or current sexual deviance. Dr Collins recommended that the Applicant undertake further treatment sessions.
6. Dr Collins acknowledged the existence of a "halo" effect and that a rapport had been developed with the Applicant during her treatment of him. However, Dr Collins denied that her opinions lacked objectivity, noting that that she was bound by the expert code of conduct.
7. The Tribunal found Dr Collins to be an impressive witness. Her experience and qualifications were not in dispute. However, of concern to the Tribunal was the Applicant's continued denial that sexual gratification was a feature of his offending. That he maintains his denial despite professional treatment, in the Tribunal's view, affects the weight accorded to the professional evidence, including the assessment of the Applicant's risk.

(j) Any information given by the Applicant in, or in relation to, the application

1. The Applicant seeks a clearance on a twofold basis. His current employer now requires him to obtain a working with children check clearance due to the requirements of certain training contracts with which he is involved (or likely to be involved) during the course of his employment.
2. Secondly, and to a lesser extent, the Applicant wishes to recommence sports coaching, in which he has been closely involved, including at a high level for remuneration. Whilst in more recent years the Applicant has coached adult teams only, there may be occasions when youths are eligible to play for adult teams, in which case a working with children check clearance would be required.
3. In support of his application for an enabling order, the Applicant relied upon his oral and written evidence as well as the documentary evidence he submitted in support of his initial application in 2012. It includes character references tendered during the sentencing proceedings for his disqualifying offence and during his initial application for a clearance. Those references attest to the Applicant's good character, his work history and his dedication to the sporting teams and communities in which he has been involved. There is no evidence of any inappropriate conduct during his involvement in sport. It is apparent that the Applicant has been held in high regard by his peers, former colleagues and sporting associates.
4. However, it is not likely that such persons are aware of the full details of the Applicant's disqualifying offence, and the nature and extent of his correspondence with Mr L. Indeed, in a letter the Applicant wrote to his former employer in 2007 seeking to explain his conviction, he minimised his offending, suggesting that he was guilty of merely putting something in his locker that was sent to him seven years ago, and guilty of naivety and stupidity only.
5. The Applicant has been married to his wife for 28 years. They have two adult sons, as well as grandchildren. The Applicant's family members did not attend the Tribunal hearing. However, the evidence indicates that they are a close and supportive family.
6. Counsel for the Applicant submitted that since his convictions in 2007 and 2008, the Applicant has avoided putting himself in situations where he would be in contact with children, and has made proper disclosure and inquiry since that time. Counsel submitted that the Applicant has made significant changes in his life, and accepted the recommendation of Professor Greenberg in 2013 that he undergo treatment and counselling. Counsel for the Applicant submitted that the Applicant, who is continuing to have treatment, has had a very high level of engagement and has made attempts in good faith to address the issues.
7. Counsel for the Applicant submitted that Dr Collins' opinion should be afforded significant weight, especially in light of the length of her therapeutic relationship with the Applicant. Counsel also suggested that it was open for the Respondent, if concerned about Dr Collins' assessment of the Applicant's risk, to have sought a further assessment by Professor Greenberg, but elected not to do so.
8. Counsel for the Applicant cautioned against making any adverse findings as a result of the Applicant being a victim of sexual abuse in his childhood, and noted the personal and traumatic nature of the Applicant's disclosures.
9. Counsel for the Applicant submitted that that there has been a considerable passage of time since the Applicant's convictions in 2007 and 2008, where there has been no evidence of any further offending, which taken together with his level of insight, his protective factors, and his lengthy period of treatment, indicates that he is a not a risk to the safety of children.

(k) Any other matters that the Children's Guardian considers necessary

1. The Respondent opposes the application. Counsel for the Respondent submitted that the Applicant has not discharged his onus to prove that he is not a risk to the safety of children, and has not disclosed all relevant matters as required by section 28(5) of the Act.
2. Counsel for Respondent submitted that the Applicant's interest in child pornography is not limited to an isolated event in 2001, but rather was calculated (as demonstrated by the opening of a postal box in a false name), occurred over a lengthy period of time and involved the direct correspondence with fellow offenders.
3. Counsel for the Respondent submitted that the Applicant's failure to disclose all relevant matters was demonstrated by his failure to provide Dr Collins with copies of the letters he wrote to Mr L in 2004.
4. However, the Tribunal did not accept that this failure was a deliberate omission on the part of the Applicant. Rather, those documents, which were produced under summons, were only made available to the Applicant and his legal representatives approximately one week prior to the Tribunal hearing. There is no evidence that the Applicant had retained copies of those letters following his arrest. Furthermore, although not aware of their specific contents, Dr Collins was made aware generally of the fact that the Applicant corresponded with Mr L. The Tribunal was therefore not satisfied that the failure to provide the actual letters to Dr Collins (or the Tribunal) was a deliberate breach of the Applicant's duty to disclose relevant matters.
5. Nor did the Tribunal find that the Applicant's statement that he had not been involved in sports coaching since 2011 was deliberately false or misleading. Rather, his explanation that it was an oversight was reasonable, particularly if the Applicant did not consider the casual goalkeeping training of adult males was equivalent to the formal coaching roles he held prior to 2011.
6. Counsel for the Respondent submitted that the nature of the Applicant's correspondence with Mr L and his description of a sexual fantasy involving a 13 year old girl was of concern. Counsel further submitted that whilst the fact that the correspondence occurred some 12 years ago may be a mitigating factor, the specifics of the Applicant's conduct was not dealt with by Dr Collins, thus affecting the reliability of her assessment. Moreover, Counsel for the Respondent submitted that as the Applicant's treating psychologist, Dr Collins had become the Applicant's advocate rather than an objective expert. Counsel also submitted that it is of relevance that Dr Collins, while asserting that there was insufficient evidence before her to support a diagnosis of sexual deviance, does not categorically exclude such a diagnosis.
7. Counsel for the Respondent submitted that the Applicant has minimised his involvement in, and relationship with, the child pornography material. Counsel submitted that the Applicant has also over time failed to be fully frank or has been inconsistent about a number of matters including the extent of the sexual abuse he suffered as a child, his homosexual activities, and the extent of his viewing of child pornography video recordings. Counsel further submitted that the Applicant's claim that he did not obtain sexual gratification from the material is contrary to the evidence, and if found to be the case, the Applicant cannot be said to not pose a risk to the safety of children.

Conclusion

1. The issue for determination is whether, on the material before it, the Tribunal is satisfied that the applicant has discharged his onus to prove that he is not a risk to the safety of children. In this regard, the Tribunal is cognizant of the fact that the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.
2. As indicated in earlier paragraphs of these Reasons, the Applicant's disqualifying offending was serious. The evidence indicates that the Applicant's interest in child pornography was significant, involving large amounts of material received and retained over a lengthy period of time, and which involved contact with other offenders.
3. In addition, the Tribunal found the content of the letters written by the Applicant to be very disturbing. Whilst there is no evidence that the Applicant has committed a sexual assault of a child, his admission that it was a mere fantasy is also troubling. The Applicant's assertion that the fantasy was not his, and that his actions in writing about sexual activities involving children was wholly for the benefit of Mr L was not credible, particularly in light of the nature, detail and explicitness of the correspondence in question.
4. Furthermore, the Applicant's claim that his interest in child pornography was as a result of his curiosity and hoarding behaviours, and wholly motivated by a desire for further opportunities for threesomes, is also not credible. The Applicant's continued denial that he received sexual gratification from child pornography is problematic, particularly in circumstances where the evidence clearly supports the opposite proposition. Such evidence includes the Applicant's admission to police in 2007, the significant quantity of child pornography material the Applicant received and retained in his possession for many years, and the length and nature of the Applicant's contact with Mr L. It is concerning, therefore, that despite treatment for more than 1.5 years, the Applicant continues to minimise his offending behaviour, which in turn raises questions as to the efficacy of his treatment and rehabilitation.
5. However, it cannot be said that the Applicant has failed to make changes in his life. Rather, the Tribunal finds that the Applicant is motivated to rehabilitate. He has engaged in treatment to address his offending behaviour. He continues to attend treatment voluntarily notwithstanding he is no longer on the Child Protection Register. He has undertaken further education and training to maximise his prospects of employment. He has been in consistent employment, leads a healthy lifestyle, and has a close and supportive family. All of these factors militate in the Applicant's favour and he is to be commended for embarking on a path of rehabilitation.
6. Furthermore, the applicant's personal circumstances, namely, his own history of being a victim of child sexual abuse are tragic. The Tribunal finds that the Applicant remains genuinely and significantly affected by the events of his past, and their impact on him was clearly evident during the Tribunal hearing.
7. It was apparent to the Tribunal that the Applicant is still on a path of rehabilitation. Although he has taken measures to reduce his risk of re-offence, his disqualifying offending cannot be said to have occurred in the more distant past. Moreover, his removal from the Child Protection Register has occurred only in the last year. The Applicant has therefore not yet experienced an extended period of time without supervision or formal restrictions in place.
8. Whilst it is apparent that the Applicant receives support from his family and has enjoyed consistent employment, the Tribunal notes that those factors were also present in the Applicant's life around the time of his offending. As a consequence, those protective factors alone are not, in themselves, sufficient to prevent the applicant's re-offending.
9. The Tribunal acknowledges that the Applicant has been assessed as presenting a very low risk of sexual recidivism and that he does not pose a risk to the safety of children. However, a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the Applicant poses a risk to the safety of children. The Tribunal accepts that if the Applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. Whilst the Applicant has indicated he does not propose to work with children specifically, this is not critical to the Tribunal's determination.
10. The safety, welfare and well-being of children and in particular, protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. On the balance of probabilities and taking into the seriousness and gravity of the applicant's offending, the Tribunal cannot be satisfied that the Applicant does not pose a risk to children. Accordingly, his application for an enabling order is refused.

ORDERS The Orders of the Tribunal are as follows: 1. The application for an enabling order is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2016