Correspondence from Santone Lawyers dated 22 February 2022 advised on behalf of the applicant that they entirely supported the respondent's written submissions filed on 22 February 2022.
In oral submissions on behalf of the applicant during the hearing, it was confirmed that there was no dispute between the parties that FFB's offending conduct constituted a disqualifying offence under the Act and that the Children's Guardian had no option but to cancel his clearance.
The applicant's affidavit set out his family and employment history and the circumstances in which he committed the disqualifying offence.
The applicant has been undertaking a Masters of Teaching (Primary) for the past two years and hopes to complete the course in June 2022. He has been engaged as a casual teacher at a university in Sydney since 2015, teaching adult students. During periods of time in 2013, as well as in 2015 and 2018 coincident with his casual teaching role, he also worked as a contractor in website development. In the period between September 2015 and April 2019, he involved himself in community, fundraising and volunteer activities overseas and this was associated with periods working as a primary teacher and secondary teacher internationally. He also had a number of years in a church environment between 2010 and 2015 where he variously became involved in a range of support roles.
The applicant has aspirations to work as a primary school teacher, for which he requires an enabling order and a WWCC clearance.
His written evidence is that he experienced traumatic experiences in his childhood and has a conflict between his LGBTQI+ identity and his Christian faith. Upon becoming aware of the effects of developmental trauma in March 2020, he sought treatment options at a university-based clinic in July 2020 and ultimately engaged with his Clinical Counsellor to understand the theory behind trauma and coping mechanisms. At the time of the disqualifying offence, he said that he was on the cusp of learning to apply coping strategies to address his internal identity conflict. In his affidavit, the applicant said he has continued attending counselling with Ms H on a fortnightly basis and has regular contact with her outside those sessions.
The applicant said that, on the day of the disqualifying offence, he entered the toilets on a university campus (not the campus where he is employed as a casual teacher) believing that he would find another adult to engage in consensual sexual activity.
He believed the location was a gay beat ("beat") as advertised online, frequented by adult gay men to engage in consensual sexual activity. The applicant also described the act of "cruising" as being the act of visiting a public location to look for consensual sexual activity with an adult partner.
His evidence was that he had discovered the listing of the toilets on the university campus as a "beat" in 2015 and that he had not visited a beat for six years, having travelled for 28 months between 2015 and 2019 in different cultures. He said that at the time of the offence, he hesitated and panicked at the risk of possible harm. To mitigate the risk, he used his camera to find out who was in the next cubicle in the toilet block so that he could anticipate who he might be engaging in sexual activity with and to reduce the risk of meeting someone who may endanger his physical safety.
In reflecting upon his conduct, the applicant recognised that it would have had a harmful psychological impact upon the victim. He expressed deep remorse for robbing the victim of their privacy. He also expressed appreciation to the victim for reporting the offence to prevent further harm.
Since the offence, the applicant said he has researched the history of physical violence at "beats". He has not since attended a "beat" and now regards "cruising" as an inappropriate activity.
The applicant's evidence is that since the offence he has continued to practise a range of psychological, physiological and relational strategies on a daily basis to manage the onset of triggering and to manage his LGBTQI+ and Christian faith identity conflict.
The applicant believes that he does not pose a real and appreciable risk to the safety of children. When he attended the university "beat" on the day of the disqualifying offence, he believed he would find an adult to participate in consensual sexual activity. His evidence is that he was inexperienced in attending "beats" and panicked in the situation, because he was concerned about the risk attaching to the activity of looking for a sexual encounter.
FFB's evidence is that he is deeply remorseful about his conduct and is continuing to engage in counselling to apply strategies to ensure he does not engage in the conduct again.
[2]
Evidence in support of the applicant's case
The affidavit of the applicant's sister-in-law (Ms A) supports FFB's application to have his clearance reinstated and his goal to become a primary school teacher. This is discussed in more detail with respect to matters addressed under s 30(1)(j) of the Act.
The applicant's Clinical Supervisor provided an affidavit dated 1 February 2022 (Exhibit A3) confirming that she has provided treatment to the applicant at a clinic at the university he attends to obtain his Master of Teaching (Primary). Ms H is employed as Lead Clinical Counsellor at the clinic and was not engaged as an independent expert psychologist to provide a risk assessment of the applicant. Her affidavit is provided in support of the application for an enabling order so that the applicant can hold a clearance and engage in employment as a teacher. This is discussed in more detail with respect to matters addressed under s 30(1)(i) of the Act.
The affidavit and accompanying report of Ms North, the expert forensic psychologist, is discussed in more detail with respect to matters addressed under s 30(1)(i) of the Act.
[3]
Tribunal's assessment of risk
In assessing whether to make an enabling order, because of the statutory presumption in s 28(7) of the Act that the applicant is presumed to pose a risk to the safety of children, we must firstly assess whether, on the balance of probabilities, he does pose a real and appreciable risk to the safety of children. In making this assessment, we must have regard to the paramount consideration under s 4 of the Act (namely, the safety, welfare and well-being of children and protecting them from child abuse) and we must consider the mandatory criteria in s 30(1)(a)-(k) of the Act.
Then, if we are satisfied that the applicant does not pose a risk to the safety of children, we must determine whether we are satisfied with respect to the two limbs under s 30(1A) of the Act, namely, the "reasonable person" test and the "public interest" test. If we are not satisfied of either the first or second limbs under s 30(1A) of the Act, we must refuse to make an enabling order.
[4]
Mandatory criteria considered under s 30(1)(a)-(k) of the Act
The evidence under each of the mandatory criteria headings in s 30(1)(a)-(k) of the Act, is considered below.
[5]
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: s 30(1)(a)
The applicant was charged with one single incident of "Film person in private act without consent to obtain sexual arousal", a criminal offence under s 91K(1) of the Crimes Act, and an offence specified to be a disqualifying offence in cl 1(1)(p) of Sch 2 to the Act.
The disqualifying offence is a criminal offence under s 91K(1) of the Crimes Act as set out below:
"A person who for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act -
(a) without the consent of the person being filmed to being filmed for that purpose, and
(b) knowing that the person being filmed does not consent to being filmed for that purpose,
is guilty of an offence."
On the day of the offence, the victim provided a signed statement to Police.
When the matter was first set down before the Local Court in August 2021, the applicant did not appear. The Judicial Officer noted that the written notice of pleading had been received however a comment was made on the Future CAN Master Coversheet to the effect that the defendant "needs to be before the Court (serious)." The matter was relisted two weeks later and the applicant attended by AVL.
The Local Court Magistrate found the applicant guilty but without proceeding to conviction, and directed him to enter into a Conditional Release Order for 18 months pursuant to s 9(1)(b) of the C(SP) Act with such period commencing in August 2021. The Conditional Release Order is subject to standard conditions (that the applicant must not commit any offences and must appear before the Court if he is called on to do so during the term of the order) as well as the following additional condition:
"The Defendant is to continue with his counselling at the [relevant well-being centre]. He is to advise [his Clinical Counsellor] of the [relevant well-being centre of this order."
As previously noted, the applicant is required to comply with the Conditional Release Order until February 2023.
The disqualifying offence carries a maximum penalty of 100 penalty units or imprisonment for 2 years, or both. The offence is of a sexual nature, involved the absence of consent from the victim and was committed in a public place. The applicant had no means of knowing who his victim would be, including whether or not they would be an adult or a child. Given those matters, the disqualifying offence is, objectively, a serious offence. However, in light of the mitigating factors as put forward by the applicant, the conduct is not at the higher end of seriousness for offences of this type, an assessment accepted by the respondent. Those factors include that, in the applicant's mind, he expected that any encounter would be with a consenting adult male, he was unfamiliar with the conduct expected at a "beat" and activated his phone to limit a potential risk of physical harm to himself, and he regrets his own behaviour and any impact it had on the victim. We accept the oral submissions made on behalf of the applicant that the likelihood of FFB encountering a child in a university environment (where most students would likely be adults) was low.
[6]
The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)
[7]
Period of time since the alleged conduct
The disqualifying offence is recent, having occurred on 24 May 2021, around 9 months prior to the hearing before this Tribunal.
The applicant has not been charged or convicted of any offences subsequent to the disqualifying offence.
Since the disqualifying offence, the applicant has continued to undertake his postgraduate study towards completing a Masters of Teaching (Primary). He is employed as a Casual Tutor at another university teaching adult students.
The applicant attended upon a Forensic Psychologist, Ms North, for the purpose of being assessed as to whether he poses a risk of harm to the safety of children and his risk of re-offending in relation to the disqualifying offence or in relation to any sexual, violent or other criminal offence.
Ms North recommended that the applicant continue to attend counselling. The applicant's affidavit evidence is that he continues to attend counselling with his Clinical Counsellor, as required under the Conditional Release Order.
The applicant's affidavit evidence is that, since the disqualifying offence, he has educated himself on the risks associated with visiting "beats" and the danger of cruising for inappropriate activity. His evidence is that he has not attended a "beat" since the disqualifying offence and has expressed an intention to not ever visit a "beat" again.
[8]
The age of the person at the time the offences or matters occurred: s 30(1)(c)
The applicant was 30 years of age at the time of the disqualifying offence.
[9]
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: s 30(1)(d)
The Tribunal understands from the respondent's submissions that the victim was 20 years old at the time of the disqualifying offence.
The applicant's evidence was that he thought he was going to encounter an adult in the public bathroom where the offence occurred.
The details of any particular vulnerability of the victim are not evident from the s 58 documents filed in these proceedings. Nonetheless, the victim immediately reported the conduct to security staff and provided a statement to Police. This, of itself, suggests the victim was understandably offended by the conduct and had no hesitation in assisting security staff and Police in apprehending the applicant. We are otherwise not in a position to postulate whether the victim was affected by any particular vulnerability.
[10]
The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e)
The age difference between the applicant and the victim is around 10 years.
The applicant's affidavit evidence was that he believed only adults attended the location where he positioned himself for the purpose of a potential sexual encounter.
There was no relationship between the applicant and the victim.
[11]
Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f)
The applicant's affidavit evidence was that he believed, in visiting the "beat", that he would find another adult to engage in consensual sexual activity. He understood that only adults (in particular, students over the age of 18 years) frequented the location.
[12]
The person's present age: s 30(1)(g)
The applicant is 31 years of age.
[13]
The seriousness of the person's criminal history and the conduct of the person since the matters occurred: s 30(1)(h)
Prior to the disqualifying offence, the applicant had never been charged or convicted of any offence and does not otherwise have a criminal history. The National Police History dated 4 February 2022 confirms this.
The applicant has not otherwise been the subject of any formal complaints, disciplinary actions or charges throughout the course of his employment, studies or volunteering.
Otherwise, the conduct of the applicant since the disqualifying offence is referred to in relation to s 30(1)(b) above.
[14]
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)
If the applicant repeated the conduct that was the subject of the disqualifying offence, and the victim was a child, it would have an adverse emotional and psychological impact on the child.
The likelihood of any repetition by the applicant of the conduct that was the subject of the disqualifying offence was considered by the Forensic Psychologist (Ms North) and FFB's Clinical Counsellor (Ms H), and both their opinions are discussed below.
[15]
Independent expert's psychological assessment
Ms North assessed the applicant on 21 January 2022 via AVL during a two and a half hour interview.
Her report dated 4 February 2021 sets out the applicant's family, education, employment and social history. By way of summary comment, Ms North assessed the applicant as having a history of unresolved issues stemming from his childhood and education in a Christian school from kindergarten to Year 12, with conflicts between his strongly held religious beliefs and his sexual orientation.
Ms North found the applicant to be oriented to time, place and the purpose of the assessment, and there was no evidence of any perceptual, sensory or thought disturbances. Her observation was that the applicant was cooperative and friendly during the assessment, and that he became emotionally upset when discussing his childhood trauma, identity issues and the disqualifying offence. She considered his risk of self-harm to be low, based on the applicant's denial of any history of suicidal ideation or self-harming behaviours, and his identification with Christian beliefs as a protective factor.
By way of formal diagnoses, Ms North opined, based on the applicant's overall presentation and history, that he did not meet the criteria for any specific mental health diagnoses. He did not present as having suffered from any major mental health issues apart from an episode of mild depression when aged 21 years.
Ms North opined that the applicant's unresolved trauma issues and identity issues particularly concerning the conflict between his religious beliefs and sexual orientation, contributed to the applicant's disqualifying offence. She noted the applicant's feelings of hopelessness in being unable to present his true self to even his immediate family members and opined that this distress likely led to feelings of sexual frustration that it was unlikely he would ever be able to engage in a healthy relationship or be open about his sexuality. Ms North also considered it was likely that the applicant's lack of a strong social support network had led to feelings of loneliness, resulting in him seeking companionship through casual interactions. She recommended that these issues should be a focus of future treatment to reduce his risk for engaging in future inappropriate behaviours and to improve his overall mental health and quality of life.
In Ms North's opinion, the applicant displayed insight into his behaviour. He expressed empathy for the victim and acknowledged he did not have the victim's consent. He realised the risk of inadvertently filming a child and understood the reasoning behind the cancellation of his clearance. He said he would never film a person without their consent in the future and would not attend "beats" in the future, to remove the risk of reoffending.
With respect to psychometric assessment, the report relevantly noted the following:
1. based on the Personality assessment Inventory (PAI, 2nd edition), used to assess dominant personality traits and clinical factors related to psychological functioning and behaviour, the applicant's results indicated a possible lack of insight into his issues or a tendency to be defensive in his responses. Ms North thought this indicated the applicant under-reported his level of symptomatology and that this was consistent with nil clinically significant elevations in his PAI profile, despite his account of having struggled with childhood trauma and sexual identity issues;
2. the Paulhus Deception Scale (PDS) results indicated the applicant may want to present as socially acceptable. However, Ms North considered he has reasonable insight into his issues;
3. the applicant's score on the Static-99R (used for determining recidivism for adult male sex offenders) "Level IVb Well Above Average Risk" for sexual recidivism. On the Stable-2007 (used for assessing risk factors related to recidivism that can change over time), the applicant's score placed him in the "moderate" risk range. In Ms North's opinion, the combined rating over-inflated the applicant's risk for reoffending due to the reliance on static risk factors which are not amenable to change. Given the applicant did not present as a typical sex offender, his lack of prior offending history and lack of past antisocial behaviours, Ms North considered it was more appropriate to assess his risk for recidivism through a more individualistic approach, through the Sexual Violent Risk-20 (SVR-20);
4. the applicant's score using the SVR-20 indicated he posed an overall low risk for future sexual violence, including a low risk for serious physical harm and a low need for immediate action.
In Ms North's assessment, there were nil indications of any specific risk issues relating to children, nil indications that the applicant had a sexual interest in children, nil indications of the applicant posing a real and appreciable risk to the safety of children and his risk for any form of sexual reoffending was low. Ms North concluded:
"Lastly, there were no indications based on my assessment that [the applicant] presents a risk to children, and it was noted his insight and the development of strategies through his ongoing treatment would likely further reduce any potential risk issues."
We have assigned a substantial amount of weight to Ms North's assessment of the applicant's risk to the safety of children.
[16]
Opinion of the Clinical Counsellor
Ms H said that she had worked with the applicant in counselling since November 2020 and that her most recent session was on 8 November 2021. She explained that there are periods of time through the year when she is not available for regular counselling support services but that during those times she has continued to have regular contact with the applicant during semester breaks and to be available for him if required.
Ms H provided her affidavit, having carefully read and considered the Police Facts Sheet. She said that through the counselling sessions the applicant had developed understanding and insight, and that he had been provided with a more extensive range of coping skills.
In Ms H's professional opinion, the offence was out of character for FFB and he is unlikely to re-offend. Ms H said that in her counselling sessions she has seen no evidence that the applicant has had or is likely to have inappropriate intentions towards a child. She holds no concerns about the applicant engaging in child-related employment and supports his application for clearance in order to achieve employment as a teacher
Whilst the Clinical Counsellor is not an expert witness, we attach a reasonable amount of weight to her opinion given the length of time she has counselled the applicant and her knowledge of the issues for which he sought treatment.
[17]
Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)
The applicant remains subject to an 18-month Conditional Release Order requiring him to continue to attend counselling with his Clinical Counsellor until 25 February 2023.
[18]
Any information given by the applicant in, or in relation to, the application: s 30(1)(j)
The applicant provided the following information in support of the application:
1. his affidavit, which is discussed in detail earlier in these reasons;
2. an affidavit from Ms A attesting to the applicant's good character and stating that the offence was out of character for him. Ms A said she was confident that the applicant could be trusted in the presence of her two daughters without supervision and she believes he does not pose a risk to children;
3. an affidavit from his Clinical Counsellor (discussed in detail above in relation to s 30(1)(i));
4. affidavit and report from Ms North (as discussed in detail above in relation to s 30(1)(i)).
[19]
Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)
The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 30A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.
[20]
Any other matters that the Children's Guardian considers necessary: s 30(1)(k)
The Tribunal notes that the Children's Guardian issued notices pursuant to s 31(1) of the Act to the applicant's employer, the Department of Communities and Justice, the church where the applicant had held various roles and the NSW Police Child Abuse and Sex Crimes Squad (in relation to records in the COPS data base that did not result in charges.
None of the entities noted in the previous paragraph hold records of any adverse report or complaint in relation to the applicant.
[21]
Assessment as to whether the applicant is a risk to the safety of children
We are satisfied that the applicant has rebutted the presumption in s 28(7) of the Act and does not pose a real and appreciable risk to the safety of children given:
1. the applicant's lack of any other criminal history;
2. his candid admission of the offence to Police at the earliest possible opportunity and that he pleaded guilty;
3. that no children were involved in the disqualifying offence;
4. the opinion of the expert Forensic Psychologist that there are no indications that the applicant poses a real and appreciable to the risk of children and his risk for any form of sexual reoffending is low;
5. the opinion of the applicant's Clinical Counsellor that he has not expressed any ideation or thoughts about inappropriate behaviour towards children and that she holds no concerns about him engaging in child-related employment;
6. his insight into the factors that likely contributed to the disqualifying offence and his insight into the impact of his conduct on the victim, expressing his deep remorse for robbing the victim of their privacy and causing any psychological harm;
7. the circumstances of the applicant struggling to reconcile his faith with his LGBTQI+ identity such that he initiated counselling in May 2020 to seek treatment options for addressing the conflict he was experiencing and his commitment to ongoing counselling and engagement with coping strategies to integrate his Christian faith and LGBTQI identity, alongside his requirement to comply with the terms of the Conditional Release Order.
[22]
Consideration of s 30(1A) matters
It is necessary for us to consider the matters referred to in s 30(1A) of the Act.
[23]
Reasonable person
In assessing whether a reasonable person would allow their child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, we have had regard to:
1. the circumstances in which the disqualifying offence was committed (including that it did not involve children);
2. that the applicant remains subject to the Conditional Release Order and must continue to undergo counselling with his Clinical Counsellor;
3. the identity issues related to the applicant's offending (again, not involving children) for which he is receiving counselling and treatment;
4. the expert report from Ms North and the opinion of the applicant's Clinical Counsellor that the applicant does not pose a risk to children;
5. that the applicant's sister-in-law, having read the facts of his offending, continues to consider the applicant trustworthy in the presence of her two daughters, including when unsupervised.
We are satisfied that the first limb to s 30(1A) of the Act has been met.
[24]
Public interest
In considering whether it is in the public interest to make an enabling order, we are satisfied that the matters which support a finding that the applicant does not pose a risk to children also demonstrate that the grant of an enabling order would not undermine or compromise the public interest having regard to the paramount consideration in s 4 of the Act.
To remove the option for FFB to work in his chosen field of employment as a primary school teacher neither serves his private interests nor the public interest, and ignores the relevance and importance of rehabilitating offenders and their right to work: ZZ at [202].
The applicant's aspiration to be a primary school teacher is one that serves and benefits the broader interests of the community, and should be given priority in the public interest, consistent with CYY at [75].
We are therefore satisfied that the second limb to s 30(1A) of the Act has been met.
[25]
Conclusion
Taking all the above matters into account, we are of the view that it is appropriate to make an enabling order declaring that the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence, and that the correct and preferable decision is to set aside the Children's Guardian's Decision and in substitution order the Children's Guardian to grant the applicant a WWCC clearance.
[26]
Orders
1. The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the disqualifying offence of filming a person engaged in a private act without consent being a criminal offence under s 91K(1) of the Crimes Act 1900 (NSW) in relation to which the applicant pleaded guilty and was discharged of the offence under a Conditional Release Order pursuant to s 9(1)(b) and s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
2. The decision of the Children's Guardian dated 24 June 2021 cancelling the applicant's working with children check clearance is set aside.
3. In substitution, the Children's Guardian is to grant the applicant a working with children check clearance forthwith.
[27]
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
[28]
Amendments
07 March 2022 - [13] formatting corrected from quote to numbered paragraph
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: 07 March 2022
The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3:
3 Object of Act
The object of this Act is to protect children -
(a) by not permitting certain persons to engage in child-related work, and
(b) by requiring persons engaged in child-related work to have working with children check clearances.
The paramount consideration in the operation of the Act is set out in s 4:
4 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.
Having regard to that paramount consideration, the jurisdiction of the Tribunal under s 28 of the Act therefore remains protective and not punitive in nature. The object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children: CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34].
Meaning of "risk to the safety of children"
"Children" is defined in s 5(1) of the Act to mean "persons under the age of 18 years".
The meaning of "risk to the safety of children" is defined in s 5B of the Act to mean a "real and appreciable risk to the safety of children." In considering this critical aspect of the meaning of "risk", guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSWSC 949 at [42] (as cited with approval in BKE v Office of Children's Guardian [2015] NSWSC 523 at [26]) and Office of the Children's Guardian v CFW [2016] NSWSC 1406 at [13] per Harrison J):
"…what one is looking for is whether, in all of 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 children. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children"."
First limb of the two-part test under s 30(1A)(a) - the "reasonable person" test
The first limb of the two-part test is known as the "reasonable person" test. It requires the application of an objective standard based upon the views of the "reasonable person". It assumes that the "reasonable person" is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY at [26].
Second limb of the two-part test under s 30(1)(b) - the "public interest" test
The second limb of the two-part test is referred to as the "public interest" test. The notion of "public interest" was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]:
"The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question."
In proceedings under the Act, the "public interest" must be considered in light of the paramount purpose of the Act, namely, to ensure the protection of children from sexual or physical harm: s 4 of the Act.
The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: CYY at [75].
When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (ZZ) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]:
"In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others."