CSO v Children's Guardian

Solicitors: Hynes and McCormack (Applicant) NSW Crown Solicitor's Office (Respondent) File Number(s): 2016/00378354 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

1. The applicant is known by the pseudonym "CSO" in these proceedings in order to protect the identity of the applicant as is the practice of the Tribunal in order to prevent the identification of any children who have been mentioned or referred to in the evidentiary material and in accordance with Procedural Direction 9 of the NSW Civil and Administrative Tribunal.
2. CSO applied for a Working with Children Check Clearance on 30 March 2016 and 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 CSO on 19 August 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 application for review under section 27 of the Act in the Tribunal was filed within time.
3. On 14 July 2016 the applicant was informed that the respondent proposed to refuse his application and informed him of the process to make any further submissions.
4. 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 March 2016 after the commencement date of the amendments: 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.
5. The applicant was subject to a risk assessment by reason of section 14 and section 15(1) of the Act. The applicant was charged under sections 61J(1) and 61M(1) Crimes Act 1900 (NSW) for aggravated sexual assault and aggravated indecent assault to a child under the age of 16 years and as a result the applicant was subject to an assessment requirement by reason of schedule 1(1)(b) of the Act. Following 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.
6. The applicant seeks a Working with Children Check Clearance, in order to work with children occasionally as a volunteer educator.
7. The applicant is without a Working with Children Clearance now, preventing him from working in "child-related work": subsection 6(2)(g) and section 8 of the Act; clause 10 of the Child Protection (Working with Children) Regulation 2013. That means he cannot work in the Education child related employment sector.
8. This is an application pursuant to section 27 of the Act. The application for review was heard orally by the Tribunal on 2 August 2017. Written submissions in addition to the primary submissions dated 19 July 2017, were received from the applicant dated 7 August 2017. The respondent provided primary written submissions dated 21 June 2017. The respondent opposes the application.
9. 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].
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. The applicant says that a refusal of the clearance will not prevent him from volunteering. Presumably, this is because the proposed volunteering does not involve child-related employment or activities. The applicant will be able to continue in his chosen employment which is part-time.
16. 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 evidence relied upon in the hearing

1. The applicant and respondent relied upon documents which were tendered as Exhibits as follows: 1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) comprising 150 pages: Exhibit 1. 2. Further documents filed by the Children's Guardian on 6 March 2017 comprising 10 pages: Exhibit 2. 3. Further documents filed by the Children's Guardian on 27 April 2017 comprising 80 pages: Exhibit 3. 4. Submissions of the children's guardian filed 21 June 2017: Exhibit 4. 5. Application dated 15 September 2016 filed 19 September 2016 with the registry in Sydney: Exhibit 5. 6. Affidavit of the applicant of 15 February 2017 annexing a report of Rebecca Shears dated 25 January 2017, request for particulars from the Crown Solicitor's Office and the response by the solicitors for the applicant, a short history of the applicant's life: Exhibit 6. 7. Report of Rebecca Shears, psychologist dated 26 July 2017: Exhibit 7; 8. Affidavit of the applicant filed 5 June 2017: Exhibit 8; 9. Affidavit of the former spouse of the applicant filed 5 June 2017: Exhibit 9; 10. Submissions of the applicant dated 19 July 2017: Exhibit 10; 11. Additional material filed by the applicant comprising 41 pages: Exhibit 11.
2. 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.
3. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…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."
4. 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.
5. 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."
6. 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."
7. 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 (ie 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, eg, 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)
8. 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.
9. 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].
10. 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."
11. 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)
12. 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

1. 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 made in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.
2. 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."
3. 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."
4. 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."
5. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
6. "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." That is not the circumstance un relation to the applicant.
7. 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.
8. The applicant is subject to an assessment requirement because the offences with which he was charged are 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 schedule 2 of the Act.
9. 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...."
10. 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 does not apply to this decision: see section 27 (7) of the Act.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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].
16. 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.
17. 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."
18. 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]. The reasoning behind the Tribunal's determination is set out in these reasons.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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."
24. 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."
25. 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.
26. 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."
27. 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.
28. 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 applicant in this matter does not seek an approval subject to conditions.

The Issue

1. 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 grant or refusal of a Working with Children Check Clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
2. 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.
3. 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].
4. 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

1. 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.
2. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to and consider both sections 30 (1) and section 15 (4) considerations as required by both sections.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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

1. The applicant is not a disqualified person.
2. The purpose of the risk assessment is to be 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.
3. In 2000 the applicant was charged with offences under section 61J (1) (2 counts) and section 61 M (1) (1 count) of the Crimes Act 1900 (NSW). In 2001 the applicant was committed for trial in the District Court on 3 indictments which alleged aggravated sexual assaults (2) and an aggravated act of indecency with a 13-year-old girl. The Director of Public Prosecutions determined not to proceed on those indictments in 2002. An earlier trial date was vacated. The mother of the victim considered it would not be in the best interests of her daughter to pursue criminal action at the time. The police and the Director of Public Prosecutions obviously accepted the mother's view.
4. The alleged offences were said to have occurred over a period of about 3 ½ months in mid to the later part of 1999, but prior to the subsequent medical examination of the child who was the alleged victim.
5. The child who was the alleged victim was examined by a medical practitioner in late 1999 after disclosing episodes of sexual abuse over the previous 2 to 3 months with the most recent episode allegedly 10 days prior to the consultation. The medical practitioner concluded after examining the child's genitals that the child did not have an intact hymen and her injuries could be consistent with prior sexual abuse.
6. It was alleged that on various occasions the applicant touched the child's breasts and genitalia as well as digitally penetrating the child's vagina and having the child perform oral sex on him. These offences were alleged to have occurred when the applicant attended the child's home with his partner who was 'babysitting' the child. The child suffered from a moderate intellectual disability and accordingly was at an increased risk of harm beyond that of a child who did not have such a disability.
7. In an electronic interview conducted with the complainant by the police at the end of 1999, when she was 14 years old, the following allegations were made by her. The answers appear in Exhibit 1 commencing at page 66. 1. "He fingered me. I tell you how it first started. He was sitting on the lounge and I was sitting in front of him watching TV and he started massaging me and then touch my breast. He got me to massage his feet." 2. "Like he was putting his finger in my vagina. He was trying to break my waterhole." 3. "And he sucked my boobs and made me suck his doodle." 4. "He made me put my mouth right over it and it nearly chocked (sic) me." 5. The complainant told her mother about the incidents and "he said he would come and sleep with me when I'm 15." 6. The complainant said that she took his penis which was hard out of her mouth "and he kept on saying keep sucking it so I did." She said "I got a yucky taste and he said, 'keep sucking it.'" 7. The complainant was asked whether she was telling the truth and she agreed that she was.
8. The complainant first made a complaint to her mother that the applicant had sexually abused her. The child said that the applicant touched her breasts and vagina with his hand, inserted his finger in her vagina and forced her to place his penis in her mouth.
9. The complainant told the police that it happened every Thursday: Exhibit 1 page 68 questions 18 and 36. The complainant said that the applicant told her not to tell anyone.
10. The police obtained information from some other witnesses. A statement was obtained from the applicant's girlfriend, who said: "There were occasions that he was alone with the children but only 5 or 10 minutes maximum." A friend of the complainant's mother also provided a statement that the girl had disclosed to him, sometime at the end of 1999, that: "He [the applicant] was yuck" and "he [the applicant] asked me to touch his dick."
11. Evidence was given orally at the committal hearing in the Local Court where the applicant was committed for trial to the District Court. The applicant pleaded not guilty. The applicant's legal representative appeared at the committal and cross examined concerning the content and circumstances of the disclosures made by the child. The complainant was reported to be upset when she told her mother: "Me and [the applicant] had been doing things" and "He made me lick his doodle" and "Touching and stuff". The child was able to accurately describe to her mother the applicant's penis. The mother became angry when she realised the description that she was giving was anatomically correct. The mother's belief was that the child had not ever previously seen an erect adult penis. The child stated that "he [the applicant] would watch for [the applicant's girlfriend]" and if they heard a noise "he would quickly pull up his pants and as soon as it was in the clear again he pull them down and say to her 'keep sucking'". The child's mother made entries in her diary which was a form of student notebook. This document formed part of Exhibit 11. It was said that the last occasion that the applicant and his girlfriend visited the house to mind her was a specific date in October 1999.
12. The child's mother also discovered a sanitary pad with blood on it in the bathroom and when she asked her daughter about it, she replied as recorded by the mother: "She said that [the applicant] had put his finger up inside her and it had started to sting and burn, she came upstairs and she went to the toilet and when she wiped there was blood. She said that she put cream on it…" The mother was asked about this in her evidence in the committal hearing. The mother said that this was at a time when her daughter actually hadn't started menstruating. The mother said that at that time her daughter didn't have her 'periods': Exhibit 1 page 98.
13. The mother wrote in her notebook that she told the detective, after giving her own statement, that the child didn't have a mental capability to make up a story like the information she told her mother. The mother also thought that the child's descriptions of her reactions indicated that she had experienced what she was talking about. For example, gagging when he put his penis in her mouth, and stinging when it is inferred that her hymen broke.
14. If the incidents occurred as alleged by the child then they are very serious events. The applicant was in a trusted position assisting his girlfriend to babysit the child.
15. The applicant relied upon an alibi notice prior to his trial nominating witnesses who could say where he was on 4 particular dates but not the specific date in October 1999 when the child's mother said that the applicant and his girlfriend last visited her house to babysit. The child alleged that the incidents occurred on a Thursday night.
16. The trial did not proceed and the complainant was not tested in cross examination in a trial. The complainant was the subject of a further sexual assault in 2001 immediately prior to the first trial date. That trial was vacated. The Director of Public Prosecutions determined not to proceed in 2002. The applicant has denied the allegations and pleaded not guilty to the criminal charges. The complainant's version in the electronic interview is detailed and inherently credible.
17. The matters recorded in the notebook of the mother are sufficiently consistent with what the complainant said in her recorded interview with the police to be corroborative to the balance of probabilities standard of proof.
18. The child did not give evidence in the committal proceedings even though the Magistrate initially thought that she should be cross-examined. The magistrate gave a short judgment in relation to that issue which is contained in Exhibit 1 at page 118. The Magistrate said: "The question is, should this alleged victim be called to give evidence? Certainly the philosophies behind the calling, or not calling of these witnesses, in sexual matters, relates to the perceived, and I might add I agree with this philosophy, need not to cause them to be placed in the position where they need to go through this evidence on two separate occasions. However, there is a special reasons test. In this instance we have an alleged victim who has some difficulties that are detailed in the mother's statement, that is she has insulin-dependent diabetic (sic), she has been diagnosed with fibro muscular dysplasia, which is apparently an abnormality of the blood vessels in the brain. She's had major operations which has left her with "a mild to moderate intellectual impairment." She attends mainstream education but is subject to special needs support. I raise these matters because in my view this is an enhancement of the DPP's attitude in this matter, or view, that she should not be called. As I said, the timeframe in this matter is definitive, and in fact it's fairly easy to pinpoint the various dates where this could have occurred. Admittedly there is a, or a potential problem with the sequence of events, given the history, the circumstances I've outlined, I don't believe this is a matter where she should be called, and I decline to order her. In that event the statement is tendered."(sic)
19. The mother of another child contacted the police in 2001 and reported to them that her daughter had told her that the "the boyfriend of the babysitter" touched her approximately 3 years before, that is, presumably in approximately 1998. The child is alleged to have told her mother that the applicant touched her by putting his hand between her legs and the child then moved away from him. The child said that the babysitter had taken her 2 younger sisters to the shop leaving her alone with the applicant. This matter was investigated but the applicant was not contacted by the police and the applicant now denies the allegation. The girlfriend of the applicant at the time has provided evidence that she was a casual babysitter of this child up until November 1996 which is at a time she says before she entered into a relationship with the applicant. The applicant states in his material that he commenced a de facto relationship with his girlfriend in May 1997. The applicant denies the allegation and states that he was not contacted by the police or any other authority to discuss the matter. The applicant relies upon an affidavit from his former spouse.

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

1. The matters alleged are said to have occurred between approximately 1998 and 1999.
2. The applicant has since then apparently had no allegations made concerning his behaviour with children.
3. It is acknowledged that the character and conduct of the applicant since the allegations has been law-abiding and unremarkable due to the absence of any later similar allegations to the ones about which he was charged.

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

1. The applicant was aged between 31 and 32 at the time of the two sets of allegations.

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

1. The children who were alleged victims were aged 8 years in relation to the earlier allegation and for the allegations which resulted in the risk assessment the child was aged 13 years.
2. The Act requires protection of children until the age of 18 years.
3. It is submitted by the respondent that the children were particularly vulnerable. They both alleged that the events occurred whilst the applicant's girlfriend was babysitting them. The older child was particularly vulnerable because she suffered from attention deficit disorder and had a mild to moderate intellectual impairment. These factors made the two children particularly vulnerable.

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

1. The difference in age between the applicant and the two children ranged between 19 years and 23 years.

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

1. The applicant knew that the alleged victims were children.

The person's present age

1. The applicant is aged 50 years at the time of hearing.

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

1. 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

1. The Tribunal is 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.
2. 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].
3. 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.
4. In this matter the applicant relies upon two reports from the psychologist Ms Shears. The respondent submits that the reports are of limited value because they are based on history provided by the applicant and the psychologist does not use any risk assessment tools. The opinion of the psychologist is that she is unable to predict in "absolute terms" the overall risk posed by the applicant to children. There are identified a number of static and dynamic risk factors but she does not identify in the form of an opinion, the risk that he may pose to children. The psychologist states that there is no evidence of "clinical concern". There is no evidence of psychopathology or personality disorder in the assessment performed by the psychologist.
5. The applicant told his psychologist that he does not use pornography and denied any sexual interest in children.
6. The applicant says that he is close to his family who live near his home. The applicant told Ms Shears that he has approximately 15 long-term friends and they are aware of the previous allegations made against him. Ms Shears was not required for cross-examination.
7. Ms Shears' evidence therefore stands unchallenged but does not refer to the subsequent allegation concerning a different child. It is not known whether that allegation would have changed the psychologist's opinion.
8. The applicant submits that it is difficult to address the likelihood of repetition of something that he says just did not occur. This is not a unique situation for the applicant since he denies any wrongdoing in the first place, which is a position many applicants in these matters find themselves. There is also no possibility of expressing remorse when the applicant consistently denies any wrongdoing.

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

1. The applicant has now provided information including the material recorded in the exhibits.
2. The Children's Guardian has not submitted that the applicant has failed to provide relevant information. However, it has been submitted that the applicant did not address the allegations sufficiently in his material.
3. The applicant in response submits that there is an implicit denial in the material of the allegations relating to the primary complaint. It is submitted on behalf of the applicant that no weight should be attached to any assertion of lack of candour on his part.

Any other matters that the Children's Guardian considers necessary

1. The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
2. The Children's Guardian submits that the applicant has not engaged with the allegations and that is a concern. The allegations are untested but the Children's Guardian submits that the version provided by the complainant and corroborated by her mother is compelling. The respondent also submits that the similar complaint made by a different child is also of concern. The Children's Guardian submits that the circumstances are sufficient to demonstrate a real and appreciable risk to the safety of children.

CONSIDERATION

1. 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.
2. The applicant's girlfriend who was the babysitter at the time did not believe the allegations were true. In fact she believed them to be untrue. The girlfriend confirmed that the applicant went babysitting with her but says on no occasion was he ever left alone with the children for more than 5 or 10 minutes. The applicant submits that the allegations are inherently unlikely. There were other people in the house at the time that it is alleged the applicant assaulted the complainant.
3. The applicant and the respondent submit that the decision in Children's Guardian v BRL [2016] NSWSC 1206 is of assistance in determining an assessment of the risk in this matter. In that decision Justice Fagan upheld the determination of the Tribunal to admit into evidence four statements for the limited purpose of proving that the allegations they contained had been made and not as evidence of the truth of the assertions.
4. The applicant submitted that the record of interview of the child and the statement of the child's mother in relation to the primary allegations should not be admitted into evidence as to the truth of what is said in those records. This is consistent with the way in which the allegations were treated in Children's Guardian v BRL [2016] NSWSC 1206. The Tribunal has received that evidence on the basis that it proves the allegations were made, but not evidence as to the truth of the allegations.
5. It was submitted by the respondent that the Tribunal may not be in a position to make positive findings of fact that either or both of the alleged assaults occurred. It was submitted that the Tribunal may find that there is an unacceptable risk and the circumstances surrounding the incidents are such that the existence of risk has not been disproven.
6. The magistrate at the committal correctly identified that "in fact it's fairly easy to pinpoint the various dates where this could have occurred." That is despite the alibi evidence which the applicant was planning to rely upon in the criminal trial. The Thursdays upon which the events may have taken place are identifiable and the opportunity for the alleged behaviour to occur was present. The complainant in her interview with the police identified that the applicant did not on every occasion accompany his girlfriend when she was "babysat" by her: Exhibit 1 page 68.
7. The applicant submits that little weight should be placed upon the complainant's identification of the events occurring on every Thursday. The applicant conceded that he was present on about three occasions. It is submitted that the statement concerning every Thursday is inconsistent with the acknowledgement by the applicant as to the limited times that he was there. However, reading the interview of the complainant as a whole it is clear that she is not alleging that the applicant was there every Thursday. At question 18 of the interview the complainant is referring to her mother and father going "to tea or something every Thursday." Despite the complainant saying (at question 36) that "it happened every Thursday" it is difficult to read that too literally. It is clear from the surrounding context that the complainant is not saying that the applicant was there every Thursday. The applicant submits that the Tribunal should take the statements by the complainant as reflecting their ordinary English meaning. There is some contradiction between the two concepts which could have been explored in cross examination in a trial.
8. The Tribunal also accepts that the complainant and her mother obviously discussed the events together and to some extent the disclosures obtained by the mother were led from her daughter in a way which undermines the credibility of the spontaneous and naive manner which the complainant appears to exhibit in her interview with the police.
9. The respondent submits that the Tribunal may not be able to make positive findings of fact that either of the victims of the alleged assaults were in fact assaulted by the applicant. The respondent submits that the version provided by the complainant and corroborated by her mother is compelling. It is also submitted that there is a concerning similar complaint made at a later point in time. It is submitted that the circumstances are sufficient to demonstrate a real and appreciable risk to the safety of children.
10. The reports of Ms Shears (the two reports are of almost identical content) are of limited utility and the psychologist does not form any concluded opinion as to the applicant's risk to children.
11. The Tribunal finds that the evidence contained within the interview with the police together with the complainant's mother's evidence provide sufficient evidence for the Tribunal to not discount the allegations. When that evidence is coupled with the evidence of the later complaint there is sufficient concern for the Tribunal to form the view that there is possibly a historical pattern of behaviour of the applicant in accessing vulnerable children through babysitting.
12. Having regard to all of the matters referred to previously in these reasons it is the Tribunal's determination that there is an unacceptable risk of harm posed by the applicant. That unacceptable risk of harm can exist independent of a finding on the balance of probabilities that particular events have occurred: BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children's Guardian v CFW [2016] NSWSC 1406.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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."
18. 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."
19. 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 in terms of physical and psychological risk.
20. 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 charged with offences concerning child or young person abuse, but was not convicted. There was sufficient concern and adequate evidence for the charges to have been laid.
21. Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have 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

1. It is unnecessary in this matter for the Tribunal to make a determination about this particular issue.
2. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. It is concluded on the balance of probabilities that having regard to the circumstances surrounding the alleged 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].
6. 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

1. The orders of the Tribunal are that: 1. The decision of the Children's Guardian on 19 August 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: 29 November 2017