EJB v Children's Guardian

NCAT Administrative and Equal Opportunity|2020-10-08

(HL) BYR v Children's Guardian [2013] NSWADT 310 BZU v Children's Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 CGR v Office of Children's Guardian [2018] NSWSC 26 CHB v Children's Guardian [2016] NSWCATAD 214 Children's Guardian v BQJ [2016] NSWSC 869 Children's Guardian v CFW [2016] NSWSC 1406 Children's Guardian v CKF [2017] NSWSC 893 CJT v Office of the Children's Guardian [2016] NSWSC 738 CLK v Children's Guardian [2016] NSWCATAD 183 Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v VR [2012] NSWSC 1385 CSZ v Children's Guardian [2017] NSWCATAD 57 Deiter & Deiter [2011] FamCAFC 82 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 Office of the Children's Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re A Solicitor's Clerk [1957] 1 WLR 1219 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 Robertson v City of Nunawading [1973] VR 819 Secretary, Department of Justice v LMB; Secretary, Department of Justice v P M Y [2012] VSCA 143 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267 Texts Cited: None cited Category: Principal judgment Parties: EJB (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent)

Solicitors: Applicant (Self-Represented) Crown Solicitor's Office (Respondent) File Number(s): 2020/00156550 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

The applicant is known by the pseudonym "EJB" in these proceedings in order to protect the identity of the applicant. Disclosure of the identity of EJB would also incidentally identify persons associated with the applicant which is not in the interests of those children and young persons and such identification of them is contrary to section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). It is appropriate to protect the identity of the applicant with a nonpublication order.
In 2015 the applicant twice applied for a Working With Children Check clearance ("WWCC") and on each occasion the applicant withdrew his application. The applicant has never held a WWCC. On 29 March 2019 he applied again for a WWCC. The applicant was said to have nominated Education as his child related employment. This is disputed by the applicant. The applicant wants to work as a bus driver. On 8 November 2019 the Children's Guardian imposed an interim bar on the applicant engaging in child-related work.
On 27 April 2020 the Children's Guardian wrote to the applicant and informed him that his application was refused.
The respondent determined that the applicant poses a risk to the safety of children.
EJB filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") concerning the decision of the Children's Guardian, as stated on 27 April 2020. 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, that is, on 25 May 2020.
The respondent opposes the application.
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 most recent application which was after the commencement date of those 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.
The Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) amendments to the Act commenced on 25 October 2016. In particular the amendments made to section 30(1) do not apply to or in respect of a review (or an appeal arising from a review) if the review commenced before that amendment and that provision, as in force immediately before that amendment, continues to apply to and in respect of any such review or appeal: Schedule 3 Part 5 clause 25 of the Act. This review commenced after the commencement of those amendments.
The Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) ("2018 Amendment Act") was given assent on 18 April 2018 and relevantly for this review the amendment to subsection 30(1)(h) and insertion of subsection 30(1)(i1) of the Act both commenced on 1 June 2018. Section 5B of the Act was also inserted at the same time.
There were no transitional provisions in the 2018 Amendment Act.
Because of the terms of section 30 of the Interpretation Act 1987 (NSW) the amendments will be applied: see SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 per Basten JA (with whom Ward and Simpson JJA agreed) esp. at [33]-[36]. None of those amendments purport to affect or vary in any material way any rights, liabilities, or obligations of any person but simply specify existing factual matters which must be considered by the Tribunal.
The antecedent factual matters are the basis for making a determination as to the future grant of the Working with Children Check Clearance: see Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31, per Jordan CJ; Robertson v City of Nunawading [1973] VR 819 at 824, per Victorian Full Supreme Court; Re A Solicitor's Clerk [1957] 1 WLR 1219; La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Court of the Federal Court); Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856. The presumption against retrospectivity does not apply in these circumstances. This determination is also appropriate since the nature of the review and 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]. This determination is also consistent with the reasoning in CHB v Children's Guardian [2016] NSWCATAD 214.
The applicant was subject to a risk assessment by reason of section 14 and section 15(1) of the Act.
The applicant seeks a Working with Children Check Clearance, in order to work with children in Education, but he said he would like to be able to drive buses and has previously worked as a driving instructor. Nothing turns on the choice of area of work in this application, as referred to in the following paragraph.
The applicant is without a Working with Children Clearance now, preventing him from working in "child-related work": subsections 6(2)(f), (g), (l) and section 8 of the Act; clauses 10 and 15 Child Protection (Working with Children) Regulation 2013. That means he cannot work in the Education related employment sector nor as a bus driver.
The application for review was heard by the Tribunal on 8 October 2020.
The review will comply with the Act provided that the matters which must be considered in section 30 of the Act are taken into account: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.
There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998 (NSW). 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 her chosen area is not permitted by the legislation.
An order has been made under section 64(1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. That order is continued and made in accord with the current practice of the Tribunal.

The evidence relied upon in the hearing

In addition to the Application filed 25 May 2020 annexing the decision refusing the Working With Children Check Clearance, the applicant and respondent relied upon documents which were tendered as Exhibits as follows: 1. Document dated 6 August 2020 in an email to the Tribunal by the Applicant with annexures filed 6 August 2020: Exhibit 1; 2. Documents filed by the Respondent on 6 August 2020: Exhibit 2; 3. Further Documents filed by the Respondent on 4 September 2020: Exhibit 3; 4. Respondent's submissions filed 17 September 2020: Exhibit 4;
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 is determined upon the civil standard of proof which is on the balance of probabilities.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 ("Bronze Wing") at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted: "[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36]. [72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test. … [74] Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party."
The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 ("Karakatsanis ") at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis: "[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (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)
The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button's decision and orders in Bronze Wing.
The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil standard of proof in determining a factual matter: CJT v Office of the Children's Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].
The effect of the Act and the 'practical onus' which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4): "An applicant must fully disclose to the Tribunal any matters relevant to the application."
The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)
The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are also referred to in the Respondent's helpful written submissions and these reasons 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.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence."
The section was amended with effect from 4 February 2019 to include an additional maximum penalty of 2 years imprisonment, or both 200 penalty units and 2 years imprisonment. For present purposes that is not relevant to this application.
The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
"Conviction" as defined in section 5 (1) of the Act "includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction." That is not the circumstance in relation to the applicant because he has not been convicted of an offence. The applicant was acquitted in 2009 when he was charged with an offence under then section 61N(1) of the Crimes Act 1900 (NSW), that is, commit an act of indecency with a person under the age of 16 years, and wilful and obscene exposure in/near public place/school contrary to section 5 Summary Offences Act 1988 (NSW).
The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.
Pursuant to section 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows: 14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.
The applicant is subject to an assessment requirement because of charges listed under clause 1(1)(b) and 1(2)(b) of Schedule 1 of the Act.
Pursuant to section 14 and section 15(1) of the Act the Children's Guardian must conduct a risk assessment of the applicant. The circumstances in which the Children's Guardian may conduct a risk assessment are not limited by the reasons set out in subsection 15 (1) or subsection 15 (2). The section relevantly provides as follows: "15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. ...."
The hearing before the Tribunal is therefore pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act does not apply to this decision: see section 27 (7) of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children's Guardian [2015] NSWSC 523.
The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children's Guardian [2015] NSWSC 523, Beech-Jones J, at [30]-[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."
It is also not necessary for the Tribunal to make any findings that allegations not the subject of convictions in fact occurred: Children's Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.
In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J at [14]-[17] considered that the Tribunal should first consider whether positive findings could be made about any alleged acts of wrongdoing on the balance of probabilities or secondly, whether the Court or Tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding that something occurred will have a significant impact upon the ultimate decision. Even if there is no positive finding able to be made on the evidence presented, the Tribunal is required to consider questions of risk which may be indicated by all of the facts. In Children's Guardian v CKF [2017] NSWSC 893, Davies J stated that whether a finding is made or not is a factor which is to be weighed up in assessing whether the person poses a risk to safety of children.
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.
An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.
The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.
The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following: "All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."
In the following paragraph the Minister stated: "While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."
As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.
In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states: "Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."
If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.
It is the Tribunal's assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal. The applicant in this matter does not seek an approval subject to conditions.

The Issue

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

Considerations and the Evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in sub sections 15 (4) and 15 (4A) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) and 30(1A) of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.
Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to and consider both sections 30 (1) and section 15 (4) considerations as required by both sections.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act relevantly provides as follows: 15 Assessment of applicants and holders ..... (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given 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. (4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
Section 30 of the Act relevantly provides in relation to this application as follows: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is recited under subheadings referring to the required considerations under the Act.
Also, as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32. 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 around the applicant's conduct: section 63 of the Administrative Decisions Review Act.

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

The applicant is not a disqualified person. The applicant was not convicted of any offence. The applicant has not been the defendant in Apprehended Domestic Violence Order proceedings.
In November 2000, police were called to the University of Sydney after a female student reported that on different occasions within a two-day period, the applicant touched her leg under a desk several times, and the following day followed her down an aisle in the library where he stared at her. The female student was sitting at a study desk/booth with no one else around when the applicant approached where she was sitting and seated himself at the study booth directly in front of her. The female student continued studying but became aware of something irritating her leg. She brushed at her leg without looking and kept studying. About a minute later, she felt something brushing her leg and swiped at it with her hand. The female student felt something brushing her leg again and looked underneath the table. The applicant was bending down and pulling his hand back from the victim's leg. The female student looked at the applicant in the face, he looked up and said, "Sorry". The applicant grabbed his bag and left the library. The victim tried to follow him but was unable to find him. The following day the victim was studying in the library when the applicant walked past her. The applicant appeared to see her and laughed. The victim walked to another aisle in the library and the applicant followed her and stared at her. This made her feel uncomfortable and threatened so she contacted staff in the library. The staff contacted University Security: the applicant was detained in the library and then taken to the security office. The victim told police that she did not wish the matter to go any further but that it be recorded for future reference. When cross-examined about this in the hearing the applicant stated to the effect that the female student had put her foot into his space. The applicant's response in cross-examination to questions about these matters was unimpressive and self-serving. The applicant's evidence about this was unreliable. The victim's version of events is therefore preferred.
In November 2007, the police covertly observed the applicant harassing several women as they sunbaked in a public park and a nearby beach. The police observed the applicant approach each woman and lay down next to them causing each woman to pack up her belongings and leave. The applicant moved to another location and as a result of the observations the police issued the applicant with a "move on" direction. The police recorded that the applicant was told by the police his actions were not appreciated by the females who were sunbaking.
The applicant was charged in January 2009 with "commit act of indecency with person under 16 years" and "wilful and obscene exposure in/near public place/school". These charges arose out of the same incident. It was alleged that the applicant exposed his penis to a female child aged 13 years, while standing outside a toilet on a train. The child was travelling with a 10-year-old friend. The child who was alleged to have seen the applicant's penis, was not known to the applicant. The child asked the applicant whether there was anybody in the toilet prior to the applicant allegedly exposing his penis. The child immediately reported the incident to a train guard and the police were called. The police failed to serve a brief of evidence and at the hearing an application was made by the prosecution to vacate the hearing date. The application was opposed. The charges were then dismissed after no evidence was offered by the prosecution. The applicant says in the document Exhibit 1 that the police "dropped" the charges. That statement also does not accord with his solicitor's letter to the Children's Guardian.
The applicant told the police "I have never seen these girls before why have you arrested me?" The applicant smiled at the girls when they walked past and also later told the police that he had been urinating in the toilet when the victim walked through an unlocked door and observed him. In the applicant's document Exhibit 1 the applicant says that he was urinating in the toilet on the train and had forgotten to lock the door on the toilet. The applicant heard someone calling "Is anyone in there? Is anyone in there?" He then says that the toilet door was pushed open and he turned around to close the door. After closing the door, he says he continued urinating. The child said to the police she could see he was doing something in his groin area, he undid his zipper took out his penis and started wobbling it about. The child walked quickly away and reported to the guard. The police notebook records that the child was obviously upset, had tears on her face and was crying. The child said she was "feeling freaked out" and upset about what happened.
In May 2009 the applicant attended the pool area of Bronte Beach after taking a swim. At the time there were approximately 4 elderly females in the same area standing on a roof of the building directly beside the pool at the south end of the beach. The applicant sat down in a meditation pose with his feet crossed in front of him. The applicant was observed rubbing his feet which were close to his groin. The applicant then proceeded to stare at the elderly females. The females reported him to the lifeguard who attended and spoke to him. Separately, an off-duty police officer who also saw what was happening telephoned the police station in order to report the incident. The police attended and spoke with the applicant and the females. The applicant demonstrated to the police what he did and said it was a reflexology type exercise. The applicant did not agree that he was doing anything wrong. The police escorted him to his motor vehicle and performed a licence check. The police then issued him with a 'move along' direction from the whole of Bronte Beach and he was instructed not to return to the area. The applicant complied and drove away.
In July 2013 police were called to Clovelly Beach where it was thought that the applicant was a prowler. The applicant was sitting on a concrete wall with a blue towel wrapped around him wearing speedos and carrying a black duffel bag. The informant who was near the applicant believed that he was looking up female dresses within his vicinity. When police arrived a woman approached them and informed them that the alleged prowler was acting strangely. It was recorded that in her opinion, the applicant wore a towel over his face and may have been touching his private parts (genitals). The police conducted an ordinary search of the applicant and his bag and told him to immediately leave Clovelly Beach.
In November 2013 the applicant attended Balmoral Beach. The applicant changed into a pair of speedos in the change rooms. The applicant laid down, face down on a towel with a bag next to the top of his head and a towel draped over his head. The applicant positioned himself a few metres from a woman who was sunbaking. A witness observed the applicant adjusting his bag and looking over it staring at nearby women. The witness observed him doing this number of times to different women and adjusting his bag for a better position. The witness believed that the applicant may have had a recording device hidden in his bag. The witness contacted the police. Police attended the beach and observed him lying a few metres from a woman who was sunbaking. Police observed him with his towel over his head and adjusting his bag. The police spoke to the applicant. They asked him to follow them from the beach. When the applicant stood up it was observed that he had an erection. He was asked about his behaviour and what he had been doing. Police searched his bag with no result. The applicant admitted to looking at women on the beach and wanting to meet a new girlfriend. Because of his behaviour police issued a 'move on' direction, to stop harassment of other women, with that direction the applicant complied.
In January 2015 the applicant was seen at Balmoral Beach to position himself in front of a group of young females. The applicant put a towel over his head and appeared to be photographing the girls from inside a black bag which he positioned in front of himself. It was reported that he also appeared to be fondling himself, presumably his genitals, but this could not be confirmed. The police were called and when they attended they saw the applicant walking along the footpath adjacent to the beach. The police spoke to the applicant and searched his bag. The police located 2 mobile phones. They did not find any pictures of women or girls on the phones. The applicant suggested to the police that he was being victimised. The police gave him a "move on" direction and warned of the consequences if he should come under notice again.
Approximately 2 days later the applicant was at Bronte Beach where lifeguards informed the police that the applicant positioned himself approximately 1 m away from young females, placed a towel over his head to conceal himself and stared at them. The police spoke to the group of young females who considered that the applicant sat unusually close to them and was looking at them, which made them feel very uncomfortable. When the police spoke to the applicant, he said that he sits close to people so that he can listen to their conversations to improve his English, although he also told police that he had been in Australia for approximately 26 years. The applicant was searched. The police recorded that they gave the applicant a "move on" direction and explained to him that his behaviour was unacceptable. The police recorded that the applicant thought it was amusing and did not understand he was doing anything wrong.
In March 2016 the applicant was asked to "move on" by police after being seen by lifeguards and members of the public on Manly Beach sitting staring at females on the beach until they moved, then he would move to another location and stare at another group females. When the police arrived at the beach the applicant fled on foot leaving his belongings on the beach. The lifeguards finished at 6 pm so the police collected his belongings. At about 6:15 pm the applicant approached the lifeguards who contacted the police. The police spoke to the applicant and issued him with a "move on" order.
In October 2017 on Clovelly Beach the applicant was observed lying face down with his head under a towel and his hand in his pants watching a woman closely from behind. He was laying approximately 2 arms lengths from the woman who was sunbaking. There were other areas available for the applicant to lie down at the beach. A lifeguard noticed the applicant, as did the woman victim. The police attended and questioned the applicant as to why he was lying so close to the victim. The applicant became defensive and agitated. The applicant made excuses as to why he would lay so close to the victim, when there was plenty of open space available and did not need to be that close to the victim. The applicant told the police that he was being victimised and discriminated against. Police issued a "move on" direction from the area and he was told not to return to the beaches in that area.
In April 2018 police were called to Shelly Beach concerning what was thought to be suspicious behaviour by the applicant sitting near groups of females. When the informant pointed out the applicant to the police the applicant got up and walked into the water, climbed the rocks at the eastern end of the beach, and ran down the street. The informant told police that the applicant sat close to a group of females on the beach and placed a towel over his head. After a while the applicant moved to sit near another group of females. The police removed the applicant's belongings and took them to Manly Police Station. About 3 hours later, when he reported his belongings stolen, the applicant attended the police station to collect his belongings. The applicant was questioned about the events of the afternoon and he claimed not to have seen uniformed police walking towards him. The applicant stated that he did not do anything wrong. The applicant was this time given a "move on" direction from the Manly area.
The purpose of the risk assessment is to be protective of children and not punitive of the applicant. 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. A realistic assessment of the seriousness of the conduct is necessary to understand the risk issue. The context is relevant to the assessment of risk.
The events which caused the applicant to be drawn to the attention of the police are serious matters. All the events occurred in public places and caused the women and female children to feel uncomfortable and threatened by the applicant's behaviour. The police were also sufficiently concerned by the applicant's behaviour to take further action. There is clearly an element of sexual threat to the victims and inappropriate sexualised behaviour on the part of the applicant.

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

The alleged incidents were said to have occurred between 2000 and April 2018.
The applicant has been charged with 2 offences. The applicant has not been convicted of any criminal offence. The applicant has not been the defendant in any Apprehended Domestic Violence Order proceedings.
The applicant was involved in similar incidents over a period of time. Different and unrelated members of the public were the victims of his unwanted attention.

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

The applicant was aged between 22 and 40 years of age at the time of the matters which were recorded against him.

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

The children were aged 10 and 13 in relation to the train incident.
The Act requires protection of children until the age of 18 years.
They were vulnerable because of their age.

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

The difference in age between the applicant and the children is about 18 years. The ages of the victims on the beaches and sunbaking vary but it is clear that they were all female and unknown to the applicant. Some of those sunbakers may have been children but the information is not provided about their ages.

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

The applicant knew that the alleged victims on the train were children.

The person's present age

The applicant is aged 42 years at the time of hearing.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred

The applicant does not have a criminal record.
The applicant's conduct shows a pattern of behaviour which is inappropriate. Despite being told by the police that his behaviour was unacceptable, the applicant continued with similar behaviours.
The applicant has denied the inappropriateness of his behaviours. The applicant has repeatedly said that he had done nothing wrong. The applicant says to the Tribunal that he has respect for women and that he has no history of violence towards women. The applicant considers that the Children's Guardian has caused him a grave injustice. The applicant says that the Children's Guardian has expanded its role from protecting children to protecting older females as well.

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

The applicant has not provided any expert assessment relating to risk.
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 generally is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person may prospectively behave. The applicant has allegations made of a history of essentially voyeuristic and suspiciously inappropriate behaviour being brought to the attention of the police by different and unrelated members of the public previously unknown to the applicant.
There is no independent assessment of the risk by a psychologist or psychiatrist. 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].
As previously stated, it is not necessary for the Tribunal to make any findings that the behaviour asserted in the allegations in fact occurred: Children's Guardian v BQJ [2016] NSWSC 869 at [64] per Button J.
In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J at [14]-[17], His Honour considered that the Tribunal should first consider whether positive findings could be made about any alleged acts of wrongdoing on the balance of probabilities or secondly, whether the Court or Tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding that something occurred will have a significant impact upon the ultimate decision. Even if there is no positive finding able to be made on the evidence presented, the Tribunal is required to consider questions of risk which may be indicated by all of the facts.
An assessment of risk has two elements. The first involves the prediction of the likelihood of the occurrence of an harmful event. The second consideration is the severity of the impact of such an event would have if it occurred, so that if the consequences of the event occurring will be significant that will have a greater bearing on the assessment of whether there is an unacceptable risk: Deiter & Deiter [2011] FamCAFC 82, at [61]; Johnson v Page [2007] FamCA 1235; (2007) FLC ¶93-344 esp. at [66]; Napier v Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303; (2006) 36 Fam LR 395.
The allegations concerning the applicant's behaviour are not inherently improbable or unbelievable. In fact, aspects of those behaviours are confirmed by the applicant's evidence. The interpretation of those behaviours by members of the public and the police differ from the applicant's view of his own behaviours. The applicant considers his behaviour is benign and misunderstood. It is therefore determined that the allegations are not "groundless".
The applicant was informed by the police that his actions were unacceptable. Despite that knowledge the behaviours continued. It is not known whether the applicant is capable of changing his behaviours. It is an unacceptable way to behave towards females, particularly young females, and it is a pattern of behaviour that has existed over a number of years. The applicant did not express any insight into the effect of his behaviour on others.
In October 2017 a Sergeant of NSW police wrote a letter to the Children's Guardian expressing concerns about the behaviours of the applicant, his lack of insight into the inappropriateness of his behaviour when speaking with the police, and providing information that the police were told that he is well-known to lifeguards at the beaches he attended. This indicates, if true, that unreported incidents may be more regular occurrences than the reported incidents. The Sergeant suggested that if the applicant had a Working with Children Check clearance, based on the information which is recorded in the reasons for this decision, to which the sergeant had access and referred, reconsideration of his status should be undertaken: see Exhibit 2 page 100.
The applicant did not express any remorse for his actions and clearly considered that he had suffered "so much" because of the way his behaviours have been viewed in the past. The inference to be drawn is that the applicant considers himself a victim rather than the females to whom he has directed his unwanted interest and attention.
Furthermore, the behaviours appear to be acknowledged by the applicant as having a sexual motivation, although that is not the only reason he conducted himself as alleged. The reported behaviours all made each of the females feel uncomfortable. The child in the train incident was crying and felt "freaked out".
If the alleged conduct was repeated in the future the impact upon children would be significant. The alleged sexual behaviour if it occurred in the future would have a devastating effect upon a child.
The applicant exposed his penis to a child on the train in 2009. The child's statement about the incident is not fanciful and is confirmed in a number of respects by the applicant's more recent statement in Exhibit 1. The applicant says he is unaware whether the person saw him urinating when he turned around and closed the toilet door and he then continued urinating. The applicant states that it is more likely someone seeing his penis to have occurred inside the toilet, than outside the toilet. The applicant says he was interrupted by someone saying the same words that the child reports having said to the applicant (and words that the applicant also reported were said), but it occurred when he stood outside the toilet according to the child. Those words were: "Is anyone in there? Is anyone in there?" The applicant also states that it could have been someone else that the child saw because he states that he did not fit the description given by the child. The child was certain it was him and pointed him out. On the balance of probabilities it is more likely the incident occurred as described by the child in her statement to the police: see Exhibit 3 page 14. The Tribunal is 'comfortably satisfied' of the facts in issue occurring as described by the child to the police.
The substance of the allegations made about the behaviour of the applicant in the library at Sydney University, the sun baking young women at various beaches and public places, and the elderly women at Clovelly Beach were not factually in dispute but the applicant says that he had been exaggerated by the Children's Guardian and he did not do anything illegal. It is true that he was not charged by the police with doing anything illegal but he was asked to move on and banned from attending certain beaches. Those events as alleged are more likely to have occurred as described in the police material produced in Exhibit 2. The applicant has a history of essentially voyeuristic and suspiciously inappropriate behaviour being brought to the attention of the police by different and unrelated members of the public previously unknown to the applicant. On the balance of probabilities those events occurred and the Tribunal is 'comfortably satisfied' of the facts in issue occurring as described.
It is more probable than not that the applicant has conducted himself as alleged. It is the Tribunal's determination, having regard to the totality of the evidence, that positive findings can be made that the alleged incidents occurred.

Any order of a court or tribunal that is in force in relation to the person

There was no current order of a court or Tribunal brought to the attention of the Tribunal.

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

The applicant has now provided information including the document in email form and its annexures in Exhibit 1.
It was not submitted that the applicant had failed to provide any relevant information. The applicant was cross-examined. The impression gained from his evidence is that the applicant considers that he is not a risk to the safety of children or females in general.
The applicant denied the substance of the allegations calling them "dubious incidents", agreed that the police did speak with him on a number of occasions as alleged but they did not find any photographs.
The applicant states that he did not assault anybody on the beaches and put at least 2m distance from the other beach users without touching them at all times.

Any relevant information in relation to the person that was obtained in accordance with section 36A

There is no relevant information provided in this category.

Any other matters that the Children's Guardian considers necessary

The Children's Guardian made submissions addressing those matters which the Children's Guardian considers necessary.
The Children's Guardian submitted that in the circumstances the correct and preferable decision is that the applicant poses a risk to the safety of children.

Consideration

The Act is designed to be protective of children and the Minister's second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk.
The behaviour described was beyond reasonable community norms, the behaviour was planned, the behaviour is part of a pattern of ongoing or escalating events, the behaviour is recent, and the behaviour, if repeated, would do significant harm. There are no mitigating factors such as evidence of significant and sustained positive socialisation since the behaviour occurred, the recurrence of concerning behaviour is over a significant period, and there is no evidence that there has been a genuine and sustained effort to remedy the conduct and past behaviour.
Remorse is not considered to be a factor that mitigates risk in this matter. The applicant has not shown any remorse for his behaviours which have occurred over a number of years and are clearly inappropriate behaviours which pose a risk to the safety of children, in particular female children.
The applicant stated that he would like to drive a bus if he is granted a Working with Children Check Clearance.
The Tribunal finds on the balance of probabilities that the alleged events occurred and it is likely that they will continue to occur because they are entrenched behaviours, therefore there is an unacceptable risk of harm posed by the applicant to the safety of children.
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 independently 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.
The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk must give primacy to protective factors whilst balancing all of the risks which may be posed to children.
The Tribunal agrees with the reasoning in CHB v Children's Guardian [2016] NSWCATAD 214 at [109]-[124] and the provisions of section 30 (1A) of the Act apply to this application.
The Tribunal is required to consider subsection 30(1A) of the Act in the event that the Tribunal considers that the applicant does not pose a risk to children. The finding of the Tribunal is that the applicant does pose a risk to the safety of children. Therefore, this provision does not apply to this matter. However, in the event that the Tribunal is in error concerning the risk the applicant poses to the safety of children it is necessary to consider this provision. That subsection provides that the Tribunal may not make an order under this Part of the Act which has the effect of enabling a person, or the affected person, to work with children in accordance with this Act unless the Tribunal is satisfied that: 1. a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child related work, and 2. it is in the public interest to make the order.
The Tribunal has previously considered this provision in CSZ v Children's Guardian [2017] NSWCATAD 57, where an enabling order was made, and in CHB v Children's Guardian [2016] NSWCATAD 214, where the applicant had a clearance cancelled by the Children's Guardian and the Tribunal confirmed that decision. It was observed that analogous to the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied and the risk is acceptable: see ZZ v Secretary, Department of Justice [2013] VSC 267.
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence."
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."
Taking into account the paramount consideration and the objects of the Act, assuming knowledge of the allegations of inappropriate behaviours in relation to the applicant, it is determined that a reasonable person would not permit his or her child to have direct contact with the applicant unless it was directly supervised by another person while the applicant was engaged in any child -related work.
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.
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

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

Conclusion

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
As referred to previously in these reasons it is the Tribunal's determination that there is an unacceptable risk of harm posed by the applicant. The evidence received by the Tribunal establishes that the Tribunal can be satisfied for the reasons expressed 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. There may be conditions which can be imposed which ameliorate the risk but the Tribunal is not empowered to make an order with conditions.
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].
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act, referred to in detail previously in these reasons, the correct and preferable decision having regard to the material before the Tribunal is that the applicant does pose a risk to the safety of children and should not have a Working with Children Check clearance. The decision of the Children's Guardian should therefore be confirmed.

Order

The orders of the Tribunal are that: 1. The decision of the Children's Guardian on 27 April 2020 to refuse the Working with Children Check Clearance under section 18(2) of 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: 05 January 2021

Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016(NSW)

Commission for Children and Young People Act 1998(NSW)

(2006) 36 Fam LR 395

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