CRQ v Children's Guardian

NCAT Administrative and Equal Opportunity|2017-01-17

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 BVT v Office of the Children's Guardian [2016] NSWSC 1169 BYR v Children's Guardian [2013] NSWADT 310 BZU v Children's Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v BQJ [2016] NSWSC 869 CJT v Office of the Children's Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 CSZ v Children's Guardian [2017] NSWCATAD 57 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267 Category: Principal judgment Parties: CRQ (Applicant) Children's Guardian (Respondent) Representation: Counsel/Advocates: N Konic (Applicant) T Stevens (Respondent)

Solicitors: Conditsis Lawyers (Applicant) NSW Crown Solicitor's Office (Respondent) File Number(s): 2016/00378287 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

The applicant is known by the pseudonym "CRQ" in these proceedings in order to protect the identity of the applicant in accordance with Procedural Direction 9 of the NSW Civil and Administrative Tribunal. On 18 August 2016 CRQ filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") concerning a decision of the Children's Guardian, made and notified to CRQ on 19 July 2016, to refuse him a Working with Children Check Clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.
The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter due to the date of the application which was 30 November 2015: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. In CHB v Children's Guardian [2016] NSWCATAD 214 the Tribunal held that section 30(1A) of the Act applies where the Children's Guardian has made a decision to cancel a person's Working with Children Check Clearance after the commencement of the amendments and the application for review is made after the commencement of those amendments.
An interim bar was imposed on 12 February 2016.
The applicant was subject to a risk assessment by reason of section 14 and section 15(1) of the Act. The applicant was charged with offences under sections 61M(1), 61M(2), 61I, and 61L Crimes Act 1900 (NSW), which fall within clause 1(1)(b) of Schedule 1 of the Act. As a result of the risk assessment and pursuant to section 18(2) of the Act the Children's Guardian refused to grant a Working with Children Check Clearance to the applicant.
The applicant seeks a Working with Children Check Clearance, in order to work with children nominating disability services as the employment sector.
The applicant is without a Working with Children Clearance now, preventing him from working in "child-related work": subsection 6(2)(e) and section 8 of the Act; clause 8 of the Child Protection (Working with Children) Regulation 2013.
This is an application pursuant to section 27 of the Act. The application for review was heard orally by the Tribunal on 17 January 2017.
The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
Provided that the matters which must be considered in section 30 of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.
There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.
The Tribunal may not lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in his chosen area is not permitted by the legislation.
An order has been made under section 64(1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. That order is varied to accord with the current practice of the Tribunal.
The Tribunal has been assisted by the parties' legal representatives and their respective submissions.

The evidence relied upon in the hearing

The applicant relied upon documents which were tendered as Exhibits as follows: 1. Application filed 18 August 2016 together with annexures including the letter dated 19 July 2016 from the Children's Guardian and the grounds for the application relied upon by the applicant prepared by his solicitor: Exhibit A1. 2. Bundle of documents comprising 40 pages including a report by a Clinical Nurse Consultant in Forensic Mental Health dated 18 April 2016 (also found at page 197 of Exhibit R1), a psychological report dated 17 October 2016 by Nell Gaff, and statutory declarations in support of the application: Exhibit A2. 3. Submissions for the applicant in response filed 9 January 2017: Exhibit A3.
In addition, the respondent relies upon: 1. Bundle of documents filed pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) comprising 419 pages: Exhibit R1. 2. Transcript of the trial of the applicant in 2012 spanning 9 days of hearing and comprising 578 pages filed on 1 December 2016: Exhibit R2. 3. Further documents filed on behalf of the respondent on 17 November 2016 comprising 39 pages: Exhibit R3. 4. Further documents filed on behalf of the respondent on 1 December 2016 comprising 111 pages: Exhibit R4. 5. Submissions of the respondent filed 16 December 2016: Exhibit R5.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil standard of proof which is on the balance of probabilities.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 ("Bronze Wing") at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted: "[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36]. [72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test. … [74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party."
The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 ("Karakatsanis ") at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis: "[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (i.e. evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law. [37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting 'a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct'. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, e.g., Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])] [38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).] 'The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.' [39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present."(footnotes and references included)
The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button's decision and orders in Bronze Wing.
The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil standard of proof in determining a factual matter: CJT v Office of the Children's Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].
The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
The currently constituted Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
"Conviction" as defined in section 5 (1) of the Act "includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction."
Pursuant to section 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows: 14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.
The applicant is subject to an assessment requirement because the 13 counts or offences with which he was charged and for which he stood trial, subsequently receiving a verdict of acquittal in relation to all of the counts in 2012, are all offences referred to in schedule 1(1)(b) of the Act. The detail of the offences will be referred to later in these reasons. If he had been convicted then he would have been a disqualified person in terms of the Act.
Pursuant to section 15(1) of the Act the Children's Guardian must conduct a risk assessment of the applicant. The section relevantly provides as follows: "15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder...."
The hearing before the Tribunal is therefore pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order: "However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children's Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children's Guardian at [33]. It is useful to set out the reasoning behind the Tribunal's determination in this decision.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.
The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
In the following paragraph the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.
In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states: "Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."
If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.
It is the Tribunal's assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

The Issue

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

Considerations and the Evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in sub sections 15 (4) and 15 (4A) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) and 30(1A) of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.
Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act relevantly provides as follows: 15 Assessment of applicants and holders ..... (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
Section 30 of the Act relevantly provides in relation to this application as follows: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (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. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.
Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant and the circumstances giving rise to the charges he faced: section 63 of the Administrative Decisions Review Act.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar

The applicant is not a disqualified person.
The purpose of the risk assessment is protective of children and not punitive of the applicant, as earlier stated. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The legislature has included this factor as a matter relevant to the assessment of risk.
The matters which caused a refusal of the clearance were alleged to have occurred at the applicant's house. At the relevant time the applicant and his wife shared their home with 2 children. One of those children had a boyfriend who regularly spent time at the applicant's home. The boyfriend made 2 complaints to his girlfriend that the applicant participated in stretching and breathing exercises with him. The applicant's wife was then told by her daughter about those concerns. The applicant's wife contacted the boyfriend's parents and a report was subsequently made to the NSW police. Statements were obtained during the course of an investigation from the applicant's family and from the boyfriend. The Joint Investigation Response Team (JIRT) investigated the complaints, rejected the reports on the basis that the complainant was 16 years old and there was no ongoing risk of harm. The NSW police conducted an electronically recorded interview (ERISP) with the applicant. The applicant was then charged by the police with 14 offences, initially refused bail and later granted bail by the Supreme Court.
The Crown proceeded on 13 counts or offences on indictment. Each of the offences related to the same complainant, the boyfriend of the applicant's stepdaughter. They were as follows: 1. Count 1: Aggravated indecent assault (under 16 years) in the rumpus room in the form of pushing the applicant's pelvis into the complainant's body and stroking his arms and sides of his upper body while undertaking stretching exercises over a nine-month period. 2. Count 2: Aggravated indecent assault (under 16 years) in the lounge room in the form of undertaking stretching exercises with an erection over a period of 9 months. 3. Count 3: Aggravated indecent assault (under 16 years) in the rumpus room in the form of pushing the applicant's pelvis into the complainant's body and stroking his upper arms while undertaking stretching exercises and breathing exercises over a nine-month period. 4. Count 4: Aggravated indecent assault (under 16 years) in the rumpus room in the form of pushing the applicant's pelvis into the complainant's body while undertaking stretching exercises and placing his hand on his lower abdomen and inside his underwear during breathing exercises during a six-month period. 5. Count 5: Indecent assault (under 16 years) in the bedroom while undertaking stretching exercises in the form of the applicant putting his hand inside the complainant's underwear, rubbing his penis and placing his fingers behind the complainant's testicles over a one-month period. 6. Count 6: Sexual intercourse without consent in the lounge room on a mattress on the floor, in the form of the applicant performing fellatio. 7. Count 7: Sexual intercourse without consent in the lounge room on a mattress on the floor, the night after Count 6, in the form of the applicant performing fellatio on the complainant. 8. Count 8: Sexual intercourse without consent in the lounge room on a mattress on the floor, in the form of the applicant kissing the complainant on the bottom and placing his tongue in the complainant's anus. 9. Count 9: Indecent assault in or around the lounge room after the applicant gave the complainant some alcoholic drinks, in the form of hugging him and then groping the complainant's buttocks. 10. Count 10: Indecent assault in the downstairs bedroom in the form of the applicant touching the complainant's penis outside his clothes while he was sleeping. 11. Count 11: Indecent assault at the stepdaughter's aunt's birthday in the form of the applicant grabbing the complainant's buttocks while holding the ladder. 12. Count 12: Indecent assault in the rumpus room the night before the netball grand final in the form of the applicant putting his hand inside the pants of the complainant while he was sleeping on a mattress on the floor. 13. Count 13: Indecent assault in the rumpus room, following count 12, in the form of the applicant grabbing the complainant on the bottom after having a conversation with him in the night.
As stated previously the applicant was acquitted of all the charges in 2012 after a judge alone trial. The offences were alleged to have occurred between 2008 and 2009. The applicant challenged the Crown's evidence at the trial as to whether some of the acts alleged in some of the charges occurred at all. The applicant also challenged whether some of the acts occurred in the manner in which they were alleged. The applicant also challenged some of the offences alleged on the basis that there was consent to some of the alleged acts. The applicant's version of events is set out in his ERISP and is supplemented by clinical records from his consultations with his psychologist.
The complainant made 2 lengthy statements to the investigating police and gave oral evidence at the trial. The complainant's evidence was heard over 4 days and he was extensively cross examined. The complainant's credibility was not effectively undermined by that cross examination. The evidence the complainant gave was some years displaced from the actual events. The complainant was not able to recollect every particular incident about which he gave contemporaneous statements to the police.
The applicant has not provided any sworn or affirmed statement or affidavit in his application to the Tribunal. The applicant seeks to rely upon the ERISP and statements made by him to his psychologist and Clinical Nurse Consultant in Forensic Mental Health. The applicant was cross examined during the hearing in the Tribunal.
The prosecution called the complainant, the applicant's ex-wife, and a Detective Senior Constable in the criminal trial. The other witness statements were tendered by consent and marked as exhibits. In essence, the ambit of the evidence was the complainant's word against the applicant's word. There is no independent corroboration of the allegations. There is evidence of complaint made by the complainant after the event but the complaint was not immediately after the occurrence of each event. The applicant did not give sworn evidence in his criminal trial and has only recently given some sworn oral evidence in the Tribunal. In the evidence before the Tribunal the applicant said that he did not think about the act of fellatio with the complainant prior to doing it and said in his evidence he was disturbed and confused as to why the complainant allowed it to happen. This is correctly described as a form of 'victim blaming'.
The trial judge accepted that the complainant did not set about to fabricate an entire scenario against the applicant. That is a credibility finding which his Honour was well-placed to make. The Tribunal accepts that finding was available upon perusal of the transcript of the trial which is in evidence before the Tribunal. His Honour at one stage identified 3 critical issues for determining the criminal culpability of the applicant. The first issue was whether the acts constituted indecency or whether they were simply inappropriate. The second issue was whether the complainant consented to the behaviour or not. The third issue was whether the court could be satisfied beyond reasonable doubt that the events which the applicant denied actually took place. It is sufficient for the purposes of the Tribunal that the acts constituted inappropriate behaviour and boundary violations. For the purposes of the Tribunal whether the complainant consented to the acts performed by the applicant is not as relevant as the abuse of a trusted relationship and the implementation of a process of gradual erosion of appropriate boundaries between an adult and a child.
The applicant admitted to kissing and performing oral sex on the complainant but says that this occurred with the complainant's consent after he was 16 years old. The applicant's statement to his Clinical Nurse Consultant in Forensic Mental Health is that he was "freaked out" and stopped. The complainant's evidence is that he told the applicant to stop and the applicant went out on to the veranda. The complainant's version appears more credible.
The standard of proof in a criminal trial is proof beyond reasonable doubt. The onus is borne by the prosecution to prove every element of every offence that is alleged. It was also for the prosecution to prove beyond reasonable doubt that the complainant did not consent (after he turned 16) to the activity which it was alleged that the applicant participated in with the complainant. In the Tribunal the standard of proof is on the balance of probabilities. As previously stated in these reasons neither party bears the onus of proof in the Tribunal. The Tribunal may make a determination that the events alleged in fact occurred on the balance of probabilities standard of proof.
The applicant suggested that the complainant was the only person in the household strong enough to assist him with stretching his back. The applicant also suggested that his chiropractor went on leave and therefore he sought the assistance of the complainant with his back issues. Those suggestions are not plausible.
At the time of the alleged offences the applicant was working for Corrective Services New South Wales. The applicant worked in that position until a couple of years after his trial. The applicant then, after a short break in employment, commenced working in disability services as a support worker. The applicant's employment as a disabilities support worker was terminated when his Working with Children Check Clearance was not obtained.
The investigation by Corrective Services determined that after a review of all the material including submissions made by the applicant's solicitors, there was a finding of sexual misconduct against the applicant which would be reported to the Office of Children's Guardian. The Acting Executive Director of the Professional Standards Branch stated that this finding was based upon the applicant's ERISP in which he made admissions that he "had physical contact with the child and engaged in a sexual act against the child, knowing that the behaviour was unacceptable."
Prior to the admitted sexual act the applicant engaged in physical stretching and breathing exercises with the complainant. The applicant admitted that he had spoken with the complainant about having an erection but in the context of a joke and explaining that it was a physical reaction if it occurred. The applicant agreed that he performed breathing exercises and placed his hand on the complainant's chest and stomach. The applicant accepted that he placed his hand down the complainant's pants and pressed on the area behind his testicles "between his ball sac and his ring. I touched him right in the centre there…between the legs." The applicant also agreed that he requested to kiss the complainant on his buttocks. The applicant agreed he kissed the complainant on the buttock.
The evidence of the complainant about the incidents commences at page 10 of the transcript Exhibit R2. The complainant felt that the applicant had an erection: Exhibit R2 page 74. The complainant said that the applicant told him "that there was anything meant by it, it was just a physical thing, he did not mean for it to happen it just happened and he apologised." Exhibit R2 page 75. The incident during which the applicant performed fellatio upon the complainant is described in the complainant's evidence at page 49. When the complainant says that he told the applicant to stop, there was extended conversation between them before they went on to the veranda. The complainant says that the applicant then made a bourbon Coke for each of them to drink. The applicant told the complainant that he knew what he was doing was wrong and if the complainant said anything to his girlfriend or the applicant's wife their lives would be ruined.
The Tribunal does not dismiss the allegations as groundless because there is clearly corroboration of factual basis of the allegations from the applicant and the complainant is not making up stories. The oral evidence in the criminal trial established that fact.
There is no evidence from the applicant which would weigh against many of the allegations. The failure of the applicant to provide further detailed denials or explanation means that the allegations and hearsay evidence may be accorded greater weight than is deserved.
In fact, on the balance of probabilities the allegations of the complainant are established. The applicant has to a sufficient degree acknowledged the content of the allegations contained in the counts he faced in the criminal trial as truthful. The evidence does not establish to the criminal standard that the offences occurred. However, the Tribunal finds that the applicant engaged in the behaviour alleged. The Tribunal is satisfied that the events took place applying the civil standard of proof.
These are very serious matters which led to the imposition of the interim bar and subsequently to the refusal of the working with children check clearance.

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

The matters occurred in 2008 and 2009. This is now 8 years ago. There has been, however, a finding of sexual misconduct against the applicant by Corrective Services NSW based upon the same material which resulted in acquittal in the criminal trial. There have been no other allegations made against the applicant.
The applicant has expressed remorse and regret for his poor judgement in engaging in sexual conduct with the complainant. The applicant also relies upon the fact that the complainant was able to give consent when he was over the age of 16 years for sexual behaviour which occurred between them.
The applicant has also engaged in psychological interventions in order to better understand his personal psychological issues. These matters should be given some significant weight when assessing the risk issues. The evidence from the applicant's psychologist is that the focus of the intervention was to assist him to cope with situational stressors concerning the criminal court case and the breakdown of his marriage.
The applicant has been involved in community music and dramatic societies in the area in which he lives. There has never been any complaint about the applicant's conduct during supervision of workshops.
It is acknowledged by the Children's Guardian and by the Tribunal that the character and conduct of the applicant since the allegations has been beyond reproach.

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

The applicant was aged approximately 43 at the time of the alleged offences according to the applicant's submissions. It would appear to be more accurate to say that he was aged between 44 and 46 years of age at the time of the alleged offences.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

The complainant was the victim of the applicant's conduct and was aged approximately 15 to 16 years old at the time of the conduct. The complainant was the boyfriend of the applicant's stepdaughter. The applicant was considerably older than the complainant and in a position of authority and influence over his stepdaughter and her boyfriend.
In his record of interview the applicant said that he told the complainant: "… I'm scared I'm gunna neck myself. I'm scared I'm gunna leave. I don't wanna leave my family so I, I've got to work this out with you and I need your help to work this out with me."
This statement is emblematic of the applicant's perception and devolution of responsibility to the complainant. The applicant was the adult in this situation and sought to displace his responsibility for action upon the complainant when he had already completed those actions with the complainant when the complainant was the child. The complainant was vulnerable due to his age and inexperience which, it would appear, that the applicant exploited for his own purposes. The complainant expressed a feeling of helplessness and not knowing what to do when the physical intimacy and subsequent abuse escalated because he did not wish to damage the relationship between his girlfriend and the applicant (her stepfather) or between the applicant and the applicant's wife. The complainant alleged that the applicant had warned him that the breakdown of the family unit would be a consequence of disclosure by the complainant and would lead to the ending of the relationship between the complainant and the applicant's stepdaughter. That was an accurate prediction.
The Act requires protection of children until the age of 18 years.

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

The difference in age between the applicant and the complainant was approximately 29 years according to the submissions of the applicant. This is not entirely accurate because there is exactly 29 years and 8 months between their dates of birth. The age difference is closer to 30 years than it is to 29 years.
The developmental maturity of the complainant due to his age and limited life experience did not equip him to sufficiently understand the issues which the applicant was grappling with at the time of the conduct which led to the charges and were not matters which the complainant adequately understood or could assist the applicant to resolve. The applicant had superior maturity and understanding which he did not utilise. As was stated in the ERISP the applicant was seeking solutions from the complainant to his own personal issues which were solutions not within the experience of the complainant.
The applicant became infatuated with the complainant who became a sexual object for the applicant. This was despite the fact that the complainant was in fact the boyfriend of the applicant's stepdaughter and the applicant had stepped over a boundary of which he should have been aware and respected given his age, level of sophistication and maturity concerning adult relationships. The relationship clearly was not age-appropriate for the applicant for these reasons. How the applicant thought otherwise at the time is not clear to the Tribunal. Subsequently, the applicant has acknowledged to his therapist that there was a "disproportionate power balance" (sic) or perhaps imbalance in pursuing this relationship and that he would only pursue relationships with men closer to his own age in the future. The applicant has said that he has learned from this incident and is aware of the need to protect children and young people from harm and exploitation.

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

The applicant knew that the victim was a child. The applicant knew that the complainant was the boyfriend of his stepdaughter and in a relationship which was age-appropriate.

The person's present age

The applicant is currently aged 53.

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

The applicant does not have a criminal record.

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

The Tribunal has to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.
The applicant relies upon the evidence of a report by a Clinical Nurse Consultant in Forensic Mental Health dated 18 April 2016 (also found at page 197 of Exhibit R1), a psychological report dated 17 October 2016 by Nell Gaff, and statutory declarations in support of the application.
The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 at [67] and BKV v Children's Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children's Guardian [2016] NSWCATAD 3 at [91]-[92].
In essence, expert witnesses in this Tribunal have stated that prediction of a relatively uncommon behaviour such as violent or sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and "gut feeling" play a determinative role in making a judgment.
The report by a Clinical Nurse Consultant in Forensic Mental Health dated 18 April 2016 records that the applicant acknowledged his inappropriate behaviour "and that it would appear predatory considering the significant age difference...he had used poor judgment during this incident and regretted his actions." The applicant told the consultant the he offered the complainant oral sex which was accepted but that the applicant "freaked out" and stopped midway through the process. The applicant told the consultant that "he is generally interested in younger men, however he is only interested in men with adult characteristics and muscular physiques." The consultant is not appropriately qualified to make a diagnosis of any mental health disorder but the applicant was diagnosed with anxiety and depressed mood, in partial remission, treated with antidepressant medication and engagement with his treating GP. Risk assessment by the consultant relied upon RSVP, STATIC-99R and STABLE-2007 tools. The assessment tools do not validate whether the events actually occurred as alleged, a task which the Tribunal must perform based on the evidence before the Tribunal weighed in the scales using the balance of probabilities formulation. These tools have limited value in the current circumstances.
Psychological reports dated 17 October 2016 by Nell Gaff, and 14 March 2016 by Belinda Cross do not provide an opinion on risk assessment. These opinions are of limited value and focus primarily upon management of the applicant's stress and anxiety. It is probable that the applicant continues to require a form of psychological treatment in order to reduce his risk of relapse into predatory or exploitative behaviours.
The statutory declarations in support of the application contain useful character evidence but do not really address the issues of risk.
The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the alleged offences independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.
The Tribunal is not satisfied that there is an insignificant likelihood of any repetition of the behaviours which led to the charges against the applicant. It is more likely that the applicant will repeat his behaviours unless he can address the reasons for that behaviour manifesting in the way it did. A significant degree of insight is required and there is minimal evidence that the applicant has acquired the requisite insight.

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

The applicant has provided information including the material recorded in the exhibits.
The Children's Guardian has not submitted that the applicant has failed to provide relevant information.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
The respondent provided extensive documentary material and submissions in support of the position taken by the Children's Guardian that the applicant is a risk to the safety of children.

Consideration

The Act is designed to be protective and the Minister's second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk.
The Tribunal has found that the events in each of the counts for which the applicant stood trial occurred. If the Tribunal is in error and cannot make that finding, there is an unacceptable risk posed by the applicant taking into account all of the evidence which was placed before the Tribunal, and in particular the transcript of the oral evidence of the complainant in the criminal trial. The applicant was attracted to the complainant and created opportunities to spend time with him alone and in physical proximity. Much of the physical contact between the applicant and the complainant was inappropriate and irrespective of issues of consent were abusive of the complainant. The complainant was clearly uncomfortable but became inured to the intimate behaviour of the applicant. The fact that their physical sexual intimacy was kept a secret and the applicant pressed the complainant to "finish" the sexual contact once the intimacy became known within the family highlights the knowledge that the applicant must have had that the relationship was inappropriate and his determination to pursue it irrespective of the consequences to the complainant. In those circumstances, the behaviour of the applicant constitutes an unacceptable risk of harm to other children with whom the applicant may have a relationship as a disability support worker.
The applicant was suffering anxiety, distress and confusion over his own same-sex desire. The applicant was unable to act protectively towards a vulnerable child within his sphere of influence where that conflicted with his passion.
The applicant continues to suffer some stress and anxiety.
Remorse on its own is not considered to be a factor that mitigates risk and without more than an expression of such sentiment, is a hollow response to an existing behavioural reaction. In this matter there is remorse expressed by the applicant. The behaviour of the applicant, if repeated, while working with children would be more likely than not to do significant harm to children.
The length of time since the sexual behaviour with a child is a factor which weighs in the applicant's favour. However, the applicant cannot show what, if any, psychological progress has been achieved by the applicant during the intervening period of time and there is still some anticipated further work to resolve his personal issues according to Ms Gaff.
The assessment of the Tribunal based upon all of the material referred to previously in these reasons is that the applicant poses a risk to the safety of children.
The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
The Tribunal agrees with the reasoning in CHB v Children's Guardian [2016] NSWCATAD 214 at [109]-[124]. Therefore, it is determined that the provisions of section 30 (1A) of the Act apply to this application.
The Tribunal is required to consider subsection 30(1A) of the Act in the event that the Tribunal considers that the applicant does not pose a risk to children. That subsection provides that the Tribunal may not make an order under this Part of the Act which has the effect of enabling a person, or the affected person, to work with children in accordance with this Act unless the Tribunal is satisfied that: 1. 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 2. it is in the public interest to make the order.
The Tribunal has previously considered this provision in CSZ v Children's Guardian [2017] NSWCATAD 57, where an enabling order was made, and in CHB v Children's Guardian [2016] NSWCATAD 214, where the applicant had a clearance cancelled by the Children's Guardian and the Tribunal confirmed that decision. It was observed that analogous to the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
The Tribunal finds that even if the applicant does not pose a risk to the safety of children, a reasonable person would not allow his or her child to have direct, unsupervised contact with the applicant, while the applicant was engaged in child-related work. This is because a reasonable person knowing the matters the Tribunal has referred to would consider that the applicant poses a degree of risk which is unacceptable to that person both in terms of sexual risk and also in terms of psychological abuse. The behaviour of the applicant requiring that the complainant somehow "finish" the relationship which could mean either consummation of the relationship or severing of the relationship, is evidence of psychological abuse. It is not clear to that Tribunal what the applicant actually expected from the complainant. It was not made clear to the complainant what the applicant wanted to achieve other than to place responsibility upon the complainant for the consequences of the applicant's own behaviours. This determination is consistent with the objects of the Act and takes into account the variety of the forms of abuse contemplated in the offence creating provision in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The applicant was not convicted of child or young person abuse, but on the balance of probabilities it if the Tribunal's determination that the applicant abused the complainant.
Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have the contact with the applicant contemplated by s 30(1A)(a), the Tribunal is precluded from making an order enabling the applicant to work with children in accordance with the Act. It is thus not necessary to consider the application of s 30(1A)(b).

Public Interest: section 30(1A)(b) of the Act

It is unnecessary in this matter for the Tribunal to make a determination about this particular issue.
The public interest is not a confined concept. It is the Tribunal's determination that if required to decide whether it is in the public interest to make the order, for the reasons which have been stated earlier and having regard to the objects of the Act and section 4 of the Act, it would not be in the public interest to make an order enabling the applicant to work with children in accordance with the Act.

Conclusion

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
It is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant that the existence of a real and appreciable risk to children has not been disproven: see BKE v Office of the Children's Guardian [2015] NSWSC 523 at [33].
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant does pose a risk to the safety of children and should not have a Working with Children Check clearance. The decision of the Children's Guardian should therefore be confirmed.

Order

The orders of the Tribunal are that: 1. The decision of the Children's Guardian on 19 July 2016 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed. 2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 3. It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 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: 17 May 2017

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