CTE v Children's Guardian

The Evidence

1. The applicant relied upon the following material: 1. Application for Stay or Interim Order and attachments filed on 14 October 2016 (Exhibit A1); 2. Administrative Review Application Form filed on 14 October 2016 (Exhibit A2); 3. Administrative Review Application Form filed on 14 October 2016 and attachments filed on 17 October 2016 (Exhibit A3); 4. Affidavit of CTE dated 20 February 2017 filed on 21 February 2017 (Exhibit A4); 5. Affidavit of CTE's foster mother dated 27 February 2017 filed on 1 March 2017 (Exhibit A5); and 6. Further documents filed by the Applicant on 9 June 2017 (including report of Dr Katie Seidler, Clinical and Forensic Psychologist, dated 22 May 2017) (Exhibit A6).
2. At the hearing on 3 August 2017, the applicant, his foster mother and Dr Katie Seidler gave oral evidence in chief and were cross examined by Counsel for the respondent.
3. The applicant also relied upon an Outline of the Applicant's Submissions filed on 2 August 2017 and Outline of the Applicant's Submissions on Evidence filed on 14 August 2017. Counsel for the applicant made oral submissions to the Tribunal on 3 August 2017 and 25 October 2017.
4. The respondent tendered into evidence the following material: 1. Documents relied on by the Respondent at the hearing of Stay Application on 28 October 2016 filed with the Tribunal on 26 October 2016 (Exhibit R1); 2. Documents filed by the Respondent pursuant to s. 58 of the Administrative Decisions Review Act 1997 filed with the Tribunal on 11 November 2016 (Exhibit R2); 3. Further Documents filed by the Respondent filed with the Tribunal on 8 May 2017 (Exhibit R3); and 4. Further Documents filed by the Respondent filed with the Tribunal on 20 June 2017 (Exhibit R4).
5. The respondent also relied upon the Submissions of the Respondent filed on 26 June 2017 and the Further Submissions of the Respondent filed on 27 September 2017. Counsel for the respondent made oral submissions to the Tribunal on 3 August 2017 and 25 October 2017.

Issues in dispute between the parties

1. We were greatly assisted in this matter by both counsel for the applicant and respondent clearly setting out the issues in dispute between them. Simply put, it is the questions of law as to whether the Tribunal can grant a WWCC clearance under section 27 of the Act to the applicant with conditions or, in the alternative, exempt the applicant from the requirement to hold a clearance under section 10 of the Act.
2. The applicant's case is that if a WWCC clearance is to be granted by the Tribunal to the applicant then it must be granted with conditions (or that he be exempted from holding a WWCC clearance) that would enable the applicant to continue to reside with his foster carers who are also authorised out of home carers to his sister. The respondent's case is that the Tribunal does not have the power to grant a WWCC clearance with conditions (or to exempt the applicant from having to hold a clearance).

Tribunal's findings of fact

1. The central facts in this matter were not in dispute between the applicant and respondent. The Tribunal makes the following findings of fact: 1. the applicant's early years were challenging with him immigrating from Samoa to Australia without his mother; his mother dying in 2006 but the applicant not learning of her death until 2008; 2. the applicant's home life was characterised by his father's alcohol abuse and frequent violence towards the applicant and his siblings. The abuse the applicant experienced from his father included being kicked, hit and struck with objects such as sticks and a hammer including being struck on the head with a hammer until he lost consciousness. He also witnessed assaults on his siblings; 3. the applicant displayed aggressive behaviour at school including destroying school property; 4. the applicant and his siblings were removed from the care of their father in March 2013 as a result of this violence and their father was charged and found guilty of assaults upon them. The applicant does not have any contact with his father and does not wish to; 5. the applicant has been assessed as having suffered physical, emotional and psychological harm as well as cognitive and intellectual disabilities as a result of the violence he experienced in the family home; 6. the applicant views his foster carers as his family and wishes to continue to live with them; 7. the applicant's foster carers consider him to be part of their family and wish him to continue to live with them and his sister; 8. the applicant relies on his foster carers for emotional, practical and financial support including managing his finances, cooking, cleaning and doing his washing; 9. his foster mother does not think the applicant has the skills or capacity to look after himself if he had to live outside the family home; 10. the applicant does not know where he would live if he did not live with his foster parents; and 11. the applicant is not an Australian citizen and is currently not entitled to financial support from Centrelink.
2. There is no dispute between the applicant and the respondent as to the facts that gave rise to the "trigger offence" that resulted in the applicant being refused a WWCC clearance. The applicant engaged in the following conduct with his foster carers' 11 years old (incorrectly stated in the agreed facts on sentencing to be 13 years old) granddaughter on a day between March and September 2013 when she was staying at her grandparent's house; 1. he lay down next to the child (who was sleeping in his bed and he was to be sleeping in the lounge) and placed his hands under her shirt and bra and touched her breasts. The child pushed the applicant's hands away and could feel the applicant's penis against her back (the applicant was not wearing any pants); and 2. he pulled down the child's pants and his penis touched her bottom before she pushed the applicant away and went into the bathroom.
3. The child disclosed the incident in January 2015 and it was reported to the Department of Community Services and the Police. The applicant admitted to the allegations. He was charged with a single count of indecent assault on a person under 16 years of age (to which the applicant pleaded guilty); a further count of indecent assault on a person under the age of 16 was placed onto a Form 1 and taken into account on sentence; and a charge of aggravated sexual assault on a person under 16 years of age was withdrawn.
4. An order was made against the applicant under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) conditionally dismissing the charge against the applicant on the condition the applicant attended counselling/treatment in accordance with the advice of a Department of Family and Community Services case worker. An Apprehended Violence Order (AVO) was also made against the applicant prohibiting him for 12 months from having contact with the foster's carers' grandchild unless it was supervised by specified persons.
5. In accordance with the condition imposed when the charge against the applicant was dismissed, he participated in a program run by NSW Health that addresses sexually abusive behaviours in children.

Psychological assessment of the applicant

1. The applicant was assessed by Dr Katie Seidler in April 2017. Dr Seidler prepared a report that forms part of Exhibit A6 and was examined in chief and cross examined at the Tribunal's hearing on 3 August 2017. Dr Seidler gave the following overview of the applicant: "As a function of his developmental experience, [the applicant] grew into a vulnerable young person, with poor self-esteem, little experience of positive attachments and a number of psychological challenges as a function of Post Traumatic Stress Disorder…[the applicant] is anxious, easily dysregulated, has difficulties trusting others and is prone to being triggered to anger, in response to which he can act aggressively and at times, violently. He has some insight into this and claimed to be improving both with age and the stable foster placement he is in but to date, professional intervention has offered him little. Cognitively [the applicant] is a low functioning individual… he is yet to achieve independence and remains heavily reliant on his foster carers, who seem to be good people, who have accepted [him] and his siblings, who treat him kindly, including expressing a commitment to [the applicant] despite his challenging behaviour at times".

The Legislative Scheme

1. The Act makes provision for the regulation of those persons who can engage in or continue to engage in 'child related work'. The Act states: The object of this Act is to protect children: 1. by not permitting certain persons to engage in child-related work; and 2. by requiring persons engaged in child related work to having working with children check clearances.
2. Section 4 of the Act provides that the 'safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act.
3. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a person who is refused a WWCC clearance but to eliminate possible risks to the safety of children.
4. "Children" is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word "child" has the same meaning.
5. Subsection 8(1) of the Act prohibits a person from engaging in "child related work" unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance. The term "child related work" is broadly defined in section 6(2) of the Act.
6. Subsection 10(1) of the Act provides that all adults living the residence of an authorised carer are required to hold a WWCC clearance. The applicant, therefore, required a WWCC clearance when he turned 18 years old to continue living with his foster carers given they provided authorised care to his brother at that time and subsequently his sister.
7. The Act contains a similar prohibition on an employer, employing or continuing to employ a person in "child related work" where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant WWCC clearance or there is no current application by the person for such a clearance.
8. Section 22 of the Act provides that a WWCC clearance ceases to have effect five years after it was granted unless it is cancelled or suspended prior to that time (see section 23 of the Act).

Risk to children

1. The test to be applied by the Tribunal in considering the application, is whether the risk the applicant poses to children is "a real and appreciable risk". The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said: One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…

Onus and standard of proof

1. Neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32] (BJB).
2. The standard of proof applied by the Tribunal is the civil standard, that is, the balance of probabilities: CFJ v Children's Guardian [2016] NSWCATAD 62 (8 April 2016) (quoted with approval by Schmidt J in CFJ v Office of the Children's Guardian [2016] NSWSC 1625). The Tribunal approaches its fact finding in accordance with Briginshaw principle which was helpfully enunciated in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35] as being "a comfortable level of satisfaction, fairly and properly arrived at commensurate with the gravity of the charge, achieved with fair processes appropriate to and adopted by such a body".

Can a WWCC clearance be granted by the Tribunal with conditions?

1. The legislative scheme outlined above was accepted by the applicant and respondent as an accurate reflection of the current legislative approach to such applications. However, as Counsel for the applicant states in her written submissions filed on 2 August 2017, the "applicant and respondent part company on the question of whether the Tribunal may grant a clearance on conditions. For reasons appearing later in these submissions, the applicant contends that conditions may be imposed if the Tribunal grants a clearance on an application for review brought pursuant to s 27 of [the Act]"
2. The Tribunal has previously held a WWCC clearance may not be granted subject to conditions. As stated in BJB at [36] to [45]: "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 the conditions upon which clearances may be granted. These are matters to which the Tribunal adverted in the interim decision. The transitional provisions contained in Part 2 of Schedule 3 of the Act contains at clause 6 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 provisions of the Act. The Children's Guardian submits in the written submissions provided to the Tribunal 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. 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 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] 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 in the interpretation of the current 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 also 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 "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."
3. The Tribunal also held in CSO v Children's Guardian [2017] NSWCATAD 346 (CSO) at [11]-[14]: "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".
4. We note there is no superior court authority on whether a WWCC clearance can be granted with conditions under section 27 of the Act. The following passage in BKE v Office of Children's Guardian [2015] NSWSC 523 (BKE) at [33] was in the context of an application for an enabling order under section 28 of the Act: "The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act".

The applicant's position

1. The applicant's position is that the Tribunal does have jurisdiction to grant a WWCC clearance with conditions in an application for review under section 27 of the ADR Act for the following reasons: 1. BKE does not lend support for the approach of the Tribunal in BJB because the application in BKE was for an enabling order under section 28 of the Act and section 28(8) of the Act expressly ousts the Tribunal's power to impose conditions in those circumstances; 2. the Tribunal's approach in BJB is incorrect and should not be adopted by us for the following reasons: 1. in stating [at 36] that there is not is "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 Tribunal in BJB failed to consider the power in section 58 of the CAT Act. Section 58 provides: A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision. The Tribunal, therefore, in the words of Counsel for the applicant "failed to recognise section 58 as an explicit source of statutory power for the imposition of conditions and has misstated the legislative provision in this regard"; 1. by failing to recognise section 58 as a source of power for imposing conditions, the Tribunal in BJB did not give proper consideration to the other legislative provisions and extrinsic materials that support the Tribunal having power to grant a clearance under section 27 of the Act with conditions for reasons as relied upon by the applicant in paragraph 37(3) below. 1. a consideration of other legislative provisions and extrinsic materials may support an interpretation that section 27 of the Act is subject to the operation of section 58 of the CAT Act for the following reasons: 1. the Tribunal routinely applies conditions to interim stay orders under section 60 of the ADR Act in circumstances where such orders may have the effect of enabling a person to work with children; 2. Parliament may have preserved the section 58 jurisdiction with respect to section 27 clearances "so as to apply to persons who do not require a clearance to engage in 'child related work' as defined but rather to reside in an authorised carer's home"; 3. the granting of a clearance under section 27 with conditions "may serve to enhance the safety, welfare and wellbeing of a child who would otherwise lose the benefit of an existing relationship that pre-dated the requirement of a Clearance. The grant of a Clearance with conditions may not only preserve the relationship, but may also protect against a placement breakdown or removal"; and 4. there may be a benefit in preserving the Tribunal's jurisdiction to grant a clearance under section 27 with conditions so as to allow for "exceptions to the rule" as Parliament could not have foreseen and legislated for every conceivable possibility: including the one where a young adult in the applicant's situation will have to leave the family home if he is not granted a WWCC clearance.
2. The applicant also submitted that in the event we are not satisfied that a section 27 clearance can be granted by the Tribunal with conditions then the Tribunal should: 1. affirm the respondent's decision to refuse a WWCC clearance under section 63(3)(a) of the ADR Act; and 2. pursuant to section 58 of the CAT Act, exempt the applicant from the requirement to hold a WWCC clearance during any period in which his foster carers provide authorised out of home care to one or both of the applicant's siblings to the exclusion of any other child.
3. Counsel for the application submitted that because section 58 "includes a power to make the order or other decision subject to such conditions (including exemptions)" then an exemption can be made to the effect set out in paragraph 38(2) above if the Tribunal is satisfied that any risk the Tribunal finds the applicant may pose to children generally so as to warrant the refusal of a WWCC clearance can be satisfactorily ameliorated in relation to the applicant's siblings.

The respondent's position

1. The respondent's position is that the Tribunal may not grant a WWCC clearance under section 27 of the Act for the following reasons: 1. the Act does not provide for conditions to be imposed. The respondent submits that "[the Act] creates a single scheme for application for clearances, with applications resulting in either a clearance to engage in child-related work or refusal of the application. The [Act] does not permit the Children's Guardian to impose conditions on a clearance. Neither does the WWC Act provide for a power of the Tribunal to impose conditions in a review under section 27"; 2. the Tribunal's lack of jurisdiction to impose conditions on WWCC clearances is supported by the decisions of BKE, BJB, BKV v Children's Guardian [2015] NSWCATAD 65; CDX v Children's Guardian [2016] NSWCATAD 17 at [36]; 3. Section 58 of the CAT Act does not provide a separate source of power to either impose conditions or to exempt a person from the operation of the Act. The respondent submits that: 1. section 58 is within Division 5 of Part 4 of the CAT Act and each of the provisions of Part 4 is "subject to enabling legislation" (section 35 of the CAT Act); 2. the Act is enabling legislation for the CAT Act; 3. the powers of the Tribunal to determine an application for administrative review are set out in section 63 of the ADR Act which includes in section 63(2), that "the Tribunal may exercise all of the functions on the administrator who made the decision". The respondent relies upon Kocic v Commissioner for Police, NSW Police Force (2014) NSWLR 159 and authorities considering the equivalent provision (section 43(1) in the Administrative Appeals Tribunal Act 1975 (Cth)), to the effect that in conducting a review under section 27 of the Act, "the Tribunal steps into the shoes of the Children's Guardian and exercises the powers afresh, subject to the same restrictions and requirements. The task of the Tribunal is therefore the same as that of the Children's Guardian". It follows that if the Children's Guardian may not grant a WWCC clearance with conditions then neither may the Tribunal; 4. section 58 of the CAT Act is subject to the provisions of the Act and the ADR Act and cannot constitute a source of power permitting the imposition of conditions on a WWCC clearance granted by the Tribunal under section of the Act where the imposition of conditions is inconsistent with the power being exercised under the enabling legislation; and 5. relying upon section 58 to exempt persons from the operation of the Act, "is equally inconsistent with the legislative scheme created by the WWC Act which requires certain persons to hold a clearance subject to specified exemptions created by the legislature" and expressly set out in the Act.
2. The respondent also submitted that in the event we conclude there is a power to grant a WWCC clearance to the applicant on conditions, the condition proposed by Counsel for the applicant would be contrary to the Act because it is predicated on the applicant being found to pose a risk to children. It submitted that the proposed condition does not reduce the applicant's risk to children, it seeks to limit the exposure of children to the risk he poses and is therefore contrary to the scheme of the Act.

The Tribunal's reasoning and conclusion

1. We accept the previous decisions of this Tribunal in BJB and CSO and agree with the submissions of the respondent that there is no power for the Tribunal to grant WWCC clearance with conditions under the Act. We note the applicant's submission that the Tribunal's reliance in the past on BKE as authority for not being able to impose conditions on a clearance issued under section 27 of the Act may be misguided as BKE concerns section 28 of the Act which expressly excludes the imposition of conditions. We are satisfied, however, that the Tribunal lacks power to grant clearances with conditions whether the reasoning in BKE is relied upon or not.
2. The Act creates a single scheme for the application for WWCC clearances and the outcome of an application to the respondent for a WWCC clearance is that a clearance is either granted or not granted. There is no reference in the Act to the respondent being able to impose conditions or differentiate whether the particular applicant intends to engage in child related work or not (as is the case with the applicant in these proceedings). In these proceedings, we are exercising the Tribunal's jurisdiction under the ADR Act. Section 63(2) of the ADR Act provides that we may "exercise all of the functions that are conferred or imposed by any legislation on the administrator who made the decision". It follows that in reviewing a decision of the respondent under the Act, the Tribunal's functions are "limited to those of the original decision maker…and [are] to be exercised according to the same legal principles": Kocic v Commissioner for Police, NSW Police Force (2014) NSWLR 159 per Basten J at [75]; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 per Kiefel J at [134]. Just as the respondent did not have any power under the Act to issue a WWCC clearance with conditions to the applicant in these proceedings, the Tribunal does not have that power under the Act.
3. We do not accept the applicant's argument that section 58 of the CAT Act provides a separate source of power whereby the Tribunal can impose conditions on a WWCC clearance or exempt a person from the operation of the Act. The CAT Act is subject to enabling legislation (section 35 of the CAT Act) including the Act. In accordance with the authorities referred to above in paragraph 43, section 58 cannot be used by the Tribunal when reviewing a decision of the respondent as a source for a power with respect to WWCC clearances under section 27 that does not already exist in the Act itself. We accept the distinction made in the respondent's submissions that section 28(8) of the Act may have been inserted to expressly prohibit the imposition of conditions because under that section the Tribunal is exercising its general jurisdiction and making an original decision. It may be arguable that in the absence of section 28(8) the Tribunal could use section 58 to impose conditions on section 28 clearances. This is not the case, however, where the Tribunal is exercising its administrative review jurisdiction for the reasons given above and may explain why there was no need to insert an express prohibition on the imposition of conditions with respect to section 27 clearances.
4. We conclude therefore that in the event the Tribunal determines the applicant does not pose a real and appreciable risk to children and the correct and preferable decision is to grant him a WWCC clearance, the Tribunal does not have the power under the Act or under section 58 of the CAT Act to issue that clearance with conditions. Furthermore, if we determine that the applicant does pose a real and appreciable risk to the children and should not be granted a WWCC clearance, then we find the Tribunal does not have the power under section 58 of the CAT Act, for the reasons given above, to exempt the applicant from the requirement under section 10 of the Act to hold a WWCC clearance when he lives with his foster carers and they provide authorised out of home care to either or both of his siblings.

Application of section 30 of the Act to the evidence

1. The Tribunal determines an application under section 27 by considering all the evidence presented by the applicant and the respondent in light of the mandated considerations contained in section 30 of the Act: BJB at [32]. Section 30 provides: (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, (j1) Any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary.
2. The evidence and the Tribunal's findings with respect to that evidence are now considered under each of the subsection 30(1) factors. Unless otherwise noted, the applicant and respondent agree with the evidence and Tribunal's findings with respect to these factors.

(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

1. The two sexual offences for which the applicant accepted responsibility are serious given they involved a vulnerable 11 year old girl. The sentencing Magistrate found that the applicant's moral culpability for the offences was reduced by his immaturity and cognitive deficits and the applicant's traumatic background prior to coming into foster care.

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred

1. The period of time since the trigger offence is approximately four years.
2. Other than an allegation of damage to a cupboard in 2014, the applicant has not otherwise come to the adverse attention of the police. He also complied with the terms of the AVO made against him for the protection of the victim of the offence. The applicant reported to Dr Seidler that he has engaged in some acts of violence and aggression (and his brother reported that the applicant had hit and punched him at times). Counsel for the applicant noted these occasions appear to be closer in time to his removal from his father and a violent home environment.
3. The applicant attended counselling (including anger management counselling) since the time of the trigger offences as well as the New Street program for sexually abusive behaviours in young people. The applicant states in his statement to the Tribunal that: "I have learnt how to control my feelings, how to treat girls and I now better understand the impact of my behaviour on [his foster carers] and their family."
4. The applicant also said in his oral evidence that he promised his foster carers that he would never do something like he did with their granddaughter again.
5. The applicant's foster mother states in her written statement that: I have spoken to [the applicant] about what he has learnt from counselling at New Street. He said words to the effect of being sorry for what he did, knowing the effect it has had on my family and that he would do whatever it takes to not let it happen again.

(c) the age of the person at the time the offences or matters occurred

1. The applicant was 14 to 15 years old at the time of the trigger offences.

(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

1. The victim was 11 years old at the time of the offence. She was in bed in her grandmother's home and entitled to feel safe in that environment.

(e) 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 victim and the applicant at the time of trigger offence was three to four years.

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

1. The applicant clearly knew the victim was a child.

(g) the person's present age

1. The applicant is presently 19 years old.

(h) 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 any matters on his criminal record, other than the offences leading to the risk assessment.

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

1. The impact on a child of a repetition by the applicant of the conduct (being the sexual assault) would be very serious.
2. The applicant's foster mother states in her written statement that: Following the assault on [my granddaughter] there have been no further incidents that have caused me to believe that [the applicant] poses a risk to children. It is for this reason that I allow my grandchildren and other young children who form part of my extended family to regularly come into contact with [him].
3. Dr Seidler assessed the applicant as having a low risk of sexual reoffending and indicated a number of issues protective against his risk of further offending including: 1. the applicant has not come to the attention of any other authority for any other sexually inappropriate behaviour and there is no reported history of entrenched sexual deviancy, hypersexuality or sexual self-regulation concerns; 2. his sexual offending occurred on one occasion and there was no overt coercion in the offence (noting that the victim was asleep); 3. the applicant does not endorse attitudes consistent with sexual abuse; and 4. the applicant has no history of substance abuse related to sexually abusive behaviour and has age appropriate and positive peer connections.
4. Dr Seidler also reported on factors that could elevate the applicant's future risk of re-offence including: 1. he is young with little experience of mature intimacy in relationships; 2. he was the victim of child abuse and this has impacted on most areas of his functioning; 3. he lacks self awareness and self regulatory skills and suffers from psychosocial vulnerabilities as a function of his history that make it difficult for him to trust others and connect emotionally; and 4. the applicant "is a low functioning person who has very rudimentary understanding of consent and sexual boundaries, despite having been through offence focussed treatment".
5. Dr Seidler also states in relation to the applicant's psychosexual history and functioning that: "Somewhat surprisingly given that he has participated in offence specific treatment before, [the applicant] reported that he did not understand the word or concept of consent. However, he understood that we have a law about the age of consent but [he] was unsure why this law exists or why children cannot consent. Nonetheless, [the applicant] understands that children cannot consent and that adults cannot and should not be allowed to engage in sexual conduct with a child. However, [the applicant] does not really understand why this is the case…he recognised that sexual abuse harms victims but, again, [he] was unsure how".
6. Dr Seidler concludes in her report: "…there are a number of vulnerabilities in this case that may relate to the risk of sexual offence in the future and given [the applicant's] age and stage of development, I am unsure how these will play out as he ages. In particular, [the applicant's] history of abuse and trauma makes him vulnerable with respect to his mental health and capacity for meaningful intimacy in relationships. Further to this, he is engaging in both drug and alcohol use at present and although this allegedly [is] controlled and non-problematic, the effects of substance intoxication and the disinhibition that results may become an issue."
7. Dr Seidler assessed the applicant's risk of future violence to be higher (at Moderate) than his risk of sexually reoffending. She states this is due to a long history of anger management concerns and tendency to physical aggression which had been normalised when the applicant lived with his father. Dr Seidler considered the applicant to be a "vulnerable person who is easily triggered and he has few skills to manage his emotional state and behaviour effectively".
8. Dr Seidler stated in her oral evidence that she considers the applicant's relationship with his foster carers to be a "strong protective factor" in terms of the applicant's risk of reoffending and that he benefits from stable attachment bonds given his history of trauma and abuse. Dr Seidler stated that while she did not assess the applicant's adaptive functioning, she was of the opinion he would struggle living out of the foster carers' home more than others his age. She said in the event the applicant was required to live away from his foster carers' home and did not exercise good self care or restraint with respect to alcohol, drugs or negative peer influences then his risk of reoffending or engaging in violent behaviour could increase.
9. The Tribunal finds there is a low risk of the applicant repeating the conduct that led to his trigger offence and accepts Dr Seidler's evidence that this risk may increase if the applicant is no longer able to live with his foster carers.

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

1. The Tribunal notes the respondent's submissions (agreed to by the applicant) that other relevant information given by the applicant or in relation to the application includes: 1. the applicant's statements that he understands the impact of his offending conduct and has learnt to control his feelings, is at odds with some statements he made to Dr Seidler; 2. the applicant's evidence that he only drinks on special occasions is inconsistent with his statement to Dr Seidler that he sometimes binge drinks; and 3. the evidence of the applicant's foster mother that the applicant does not pose a risk to children and would find it difficult to manage if he could not live with her, her partner and his sister.

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A

1. There is no evidence of any relevant material under this section.

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

1. There were no other matters raised by the respondent.

Tribunal's consideration and determination

1. We have carefully considered all the evidence and submissions given and filed by the parties even if they are not specifically referred to in these reasons.

Does the applicant pose a "real and appreciable risk to children"?

1. As outlined above, the primary issue for the Tribunal to determine is what the correct and preferable decision is having regard to the material before the Tribunal in relation to granting a WWCC clearance to the applicant. The jurisdiction of the Tribunal under section 27 is protective of children and not punitive of the applicant. There is no requirement for 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) ALD 88). There is also no onus on the applicant to show that he is not a risk to children.
2. The most compelling evidence before us in deciding if the applicant poses a real and appreciable risk to children is Dr Seidler's evidence. Dr Seidler states: "[The applicant] is a young man and he has had a very difficult life. Unfortunately, this has left him with vulnerabilities in terms of his mental health, psychosocial functioning, capacity for self-regulation and neuro-cognitive abilities. He has been through specialist treatment before but he has not retained much from this, his understanding about risk management is very limited and he has few strategies in place to manage his emotional state and behaviour. For these reasons, I do not believe that [the applicant] will be sufficiently safe in the future for there to be enough confidence to grant him a Working with Children Check. However, it would be devastating for him to have to leave his home and be separated from his foster family and siblings, as these are the only positive attachments that [the applicant] has and he does not yet have the capacity for independence in the community. For this reason, if there is provision in the law to allow him to stay in the home but not gain a Working with Children Check, this would be recommended".
3. The relief sought by the applicant in these proceedings is that if the Tribunal grants the applicant a WWCC clearance then it does so on the conditions that he is prohibited from engaging in child related work and is prohibited from residing with his foster carers whilst they provide authorised out of home care to any child other than the applicant's siblings. Alternatively, the applicant seeks that the Tribunal affirms the respondent's decision not to grant a WWCC clearance and exempts the applicant from having to hold a clearance pursuant to section 10 of the Act during any period when his foster carers provide authorised out of home care to the applicant's siblings to the exclusion of any other child.
4. As stated above, we have determined the Tribunal does not have the power to make either of these orders sought by the applicant. Counsel for the respondent submitted that the effect of the relief sought by the applicant is that "the applicant has conceded that absent a power to grant a clearance on conditions or exempt the application from the requirements of the WWC Act, the Tribunal would conclude that the applicant poses a risk to the safety of children and thereby refuse the application". We agree with and accept that this is the effect of the application.
5. The respondent submits that the applicant poses a real and appreciable risk to children for the following reasons: 1. the relatively short period of time since the trigger offences; 2. the applicant's relatively young age; 3. the evidence of Dr Seidler that raises a degree of uncertainty as to the risk of sexual re-offence by the applicant and assessment of the moderate risk of violence; 4. the statements made by the applicant to Dr Seidler that indicate the limited efficacy of intervention programs undertaken by the applicant; his limited understanding of why his offending behaviour was wrong and his limited understanding of risk management strategies; and 5. as the respondent submits that a WWCC clearance cannot be granted with conditions nor if granted can the applicant be exempted from requiring a clearance, the granting of a WWCC clearance would permit the applicant to engage in any child related work.
6. We find the circumstances of this matter particularly tragic. The applicant experienced a violent and abusive childhood when he moved to Australia from Samoa and was in the care of his father and aunt. This dysfunctional developmental experience has resulted in the applicant having vulnerabilities in terms of his mental health, psychosocial functioning, capacity for self regulation and neuro-cognitive abilities resulting in him having a poor retention of specialist treatment, a very limited understanding of risk management and few strategies to manage his emotional state and behaviour. Within a short period of time of being removed from the care of his father almost five years ago and placed with his foster carers, the applicant engaged in sexual offending with his foster carer's 11 year old granddaughter characterised by Dr Seidler as being "opportunistic and a function of immaturity and impulsivity rather than sexual deviancy". We accept the evidence that the applicant regrets this incident and the victim's grandparents are sufficiently confident the incident will not be repeated that they are comfortable with the applicant having contact with their grandchildren and other young children.
7. These circumstances, however, do not alter the fact that the offences were serious and the victim was a vulnerable girl who could expect to be safe while sleeping in her grandparent's house. Furthermore, Dr Seidler (an experienced clinical and forensic psychologist) has provided evidence to us that she does not believe the applicant to be "sufficiently safe in the future" for there to be enough confidence to grant him a WWCC clearance. We place considerable weight on Dr Seidler's evidence. We acknowledge the applicant appears to have also done so and this has led the application seeking relief in the form of a WWCC clearance being granted with conditions (rather than an unconditional clearance) or, alternatively, the applicant being exempted from the requirement to hold a clearance if he resides with his foster carers and either or both of his siblings to the exclusion of other children.
8. On the basis of all the evidence before us and on the balance of probabilities, we are compelled to find the applicant does pose a real and appreciable risk to the safety of children that is greater than the risk of any adult preying on a child (Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]). We affirm the decision by the respondent on 22 September 2016 that the applicant not be granted a WWCC clearance.
9. Given our finding above that the Tribunal does not have the power to grant a clearance with conditions or to exempt the applicant from the application of section 10 of the Act, it follows that in the absence of obtaining a clearance, the applicant will be required to leave the home of his foster carers as they are providing authorised out of home care to his 12 year old sister. We acknowledge with significant regret the potential serious negative consequences this will have for the applicant given Dr Seidler's evidence it would be "devastating for him to have to leave his home and be separated from his foster family and siblings, as these are the only positive attachments that [the applicant] has and he does not yet have the capacity for independence in the community".
10. We also note the regrettable irony that by applying the legislative scheme provided for by the Act that has the protection of children as its objective, our decision will have such a negative consequence on a young man who has only just transitioned from childhood to adulthood and who has many levels of functioning more aligned with those of a child than an adult. Our decision will also not only prevent the applicant from continuing to live within the stable, supportive and caring auspices of his foster carers' family but will also separate him from his younger sister who his foster carers took into their home in 2017 for the purposes of reuniting the applicant and his siblings. We accept the applicant's foster mother's evidence that the applicant will struggle to care for himself if he is required to live out of home. We also place weight on Dr Seidler's opinion that without the support, stable attachment, guidance and boundaries provided by his foster carers, the applicant may demonstrate poor self care and less restraint with alcohol and substances which may cause his mental health and functioning to deteriorate and increase the risk of him engaging in violent activity including towards children. We doubt it was the intention of the Parliament for the legislation to have these consequences. Indeed, as noted by Counsel for the applicant, Parliament has "clearly recognised that risk posed in familial context differs from risk posed in a broader context" by exemptions in clauses 20(1)(c) and 22A of the Working with Children Regulation that could permit the applicant to remain in his foster carers' home if he was employed by them to care for his sister or if he was his sister's father rather than her brother.
11. Furthermore, it is difficult to understand Parliament would have intended an outcome where the considerable individual and social benefits of the foster carer scheme of providing authorised out of home care to children removed from harm, could be undermined by someone in the applicant's situation having to leave the safety, security and stability of that environment when they turn 18 years old (in circumstances where they wish to stay and their foster carers want them to stay) because they cannot be granted a conditional WWCC clearance.
12. We agree with the oral submission of Counsel for the respondent that while the correct application of the legislation in this matter results in the applicant not being granted a WWCC clearance, the circumstances of this case may support "an argument for legislative reform" so that vulnerable individuals such as the applicant are not disadvantaged in having to leave stable, secure and supportive foster care environments because conditional clearances cannot be granted by the respondent or the Tribunal.

Application of section 30(1A) to the evidence

1. Section 30(1A) of the Act is only applicable when the Tribunal has found that applicant does not pose a real and appreciable risk to children: ZZ v Secretary, Department of Justice [2013] VSC 267 (ZZ); CHB v Children's Guardian [2016] NSWCATAD 214 (CHB) at [107]; CSO v Children's Guardian [2017] NSWCATAD 346 at [126]. In the event we have erred in finding the applicant does pose a real and appreciable risk to children, we will proceed to apply section 30(1A) to the evidence.
2. Section 30(1A) of the Act provides: 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.
3. The applicant submits that the "reasonable person" would allow their child to have direct contact with the applicant in the course of child related work even if that contact was not directly supervised if they knew and understood the following matters: 1. the applicant's dysfunctional background; 2. the physical and psychological harm he suffered when he was a child; 3. his progress and development while living with his foster carers; 4. the fact that the trigger offences occurred very soon after his entry into care from a traumatic background and his lack of subsequent criminal behaviour; and 5. the prosocial characteristics identified in Dr Seidler's report.
4. The applicant also submits that there is a strong public interest in making an order granting the applicant a WWCC clearance because in the absence of a clearance that allows the applicant to remain living with his foster parents: 1. he will be vulnerable living outside his foster carers' home given his history of trauma and abuse and cognitive and intellectual deficits; 2. it is likely he will be unable to access Centrelink benefits because he is not an Australian citizen; 3. he will struggle to meet his daily personal care needs such as finding accommodation, shopping, cooking and cleaning; and 4. removing the applicant's siblings from the applicant's foster carers' home so the applicant can stay there may only expose them to the dangers that the applicant will face if he cannot live there.
5. The respondent submits that: 1. a reasonable person who knew the applicant engaged in sexual offences against a child and that an independent psychologist has expressed the view that the applicant is not "sufficiently safe" to be granted a WWCC clearance would not allow their child to have direct contact with the applicant during the course of child related work that was not directly supervised; and 2. in the applicant's circumstances, it would not be in the public interest for the applicant to be granted a clearance.
6. The Tribunal makes the following findings in relation to section 30(1)(A) of the Act in the event that it has erred in finding the applicant poses a real and appreciable risk to children: 1. A significant amount of the evidence before us, in particular that relating to the applicant's very difficult start in life and the evidence of his foster carer, may lead the reasonable person to conclude that the trigger offence was a "one off" incident perpetrated at a time when the applicant was transitioning from a traumatic home life. In our opinion, however, a reasonable person would give greater weight to the professional evidence of Dr Seidler that the applicant is not "sufficiently safe" to be granted a WWCC clearance. In light of this evidence, we find a reasonable person would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant engaged in any kind of child related work. 2. A consideration of section 30(1A)(b), "the public interest test", is only necessary if section 30(1A)(a) is answered in the affirmative. However, in the event we have erred in our finding with respect to section 30(1A)(a), we will also consider this test. As we have found the Tribunal does not have the power to grant the applicant a conditional WWCC clearance, we find it would not be in the public interest to grant the applicant a WWCC clearance. While it would permit him to reside with his foster carers (and this may be in the public interest for the reasons relied upon by the applicant in paragraph 88 above), it would also enable him to engage in work with children on an unconditional basis. We are not satisfied on the evidence before us that this would be in the public interest, particularly in light of Dr Seidler's evidence set out in paragraph 74 above.

Application filed by the applicant on 1 February 2018

1. On 1 February 2018, the applicant filed an application with the Tribunal seeking the following orders: That in the event the Tribunal affirms the decision of the Children's Guardian, refusing the applicant a working with children clearance, the following orders are sought: That the Tribunal's decision takes effect on 2 March 2018, being 4 weeks after the day on which the Tribunal's reasons for decision are given. That the stay granted on 28 October 2016 is extended until 11.59pm on the day prior to the date on which the Tribunal's decision takes effect.
2. The grounds for the application were: In the event that the applicant is unable to obtain a working with children clearance, he will be required to move out of his current home and find suitable alternative long-term accommodation within close proximity to his current carers. Securing appropriate long-term accommodation cannot occur immediately and, if he is unable to remain in his current home during the intervening period, he will be required to reside in emergency accommodation. Further information in support of the application is outlined in the attached affidavit. The orders are sought to ensure an appropriate transition from his current accommodation.
3. An affidavit by Ms Sasha Da Silva, Solicitor, Children's Civil Law Service, Legal Aid Commission, in support of the application was also filed with the Tribunal. It outlines the enquiries made to date to locate alternative accommodation for the applicant; the limited options available to him and confirms that alternative accommodation has yet to be organised.
4. On 2 February 2018, the Tribunal heard this application and it was not opposed by the respondent.
5. We are satisfied it is appropriate under section 66 of the ADR Act to delay our substantive decision taking effect until 2 March 2018. We are also satisfied that the interim stay granted with conditions on 28 October 2016 should continue in effect until 11.59pm on 1 March 2018. We find that the risk posed to the well being, physical safety and mental health of the applicant in having to leave his foster carers' home before suitable alternative accommodation can be arranged is far greater than any risk posed by him remaining in their home until 1 March 2018 under the terms of the interim stay.

Orders

1. The orders of the Tribunal are as follows: 1. The decision of the Children's Guardian dated 22 September 2016 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 2. The Tribunal's decision as set out in (1) above takes effect on 2 March 2018, being 4 weeks after the date of the Tribunal's decision. 3. The interim stay granted by the Tribunal on 28 October 2016 is extended until 11.59pm on 1 March 2018.

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: 05 February 2018