FTB v Children's Guardian

NCAT Appeal Panel|2024-05-24|Before: Armstrong J

(First Respondent) Commissioner of Police (Second Respondent) Representation: Counsel: A Sapienza (First and Second Respondent)

Summary

The appellant challenges a decision of the Tribunal's Administrative and Equal Opportunity Division that declined to make an order pursuant to s 16(3A) of the Child Protection (Offenders Registration) Act 2000 (NSW) (the CPOR Act) suspending the appellant's reporting obligations under that Act: FTB v Children's Guardian [2024] NSWCATAD 44. Whilst the Notice of Appeal also nominated a challenge to the second order made by the Tribunal that declined to make an order shortening the period under s 16(11) of the CPOR Act in which the Appellant may reapply to the Tribunal, any challenge to that order was abandoned at the hearing of the appeal.
The history of the matter is uncontroversial and was set out in the decision at first instance ('Decision'): "5 The orders sought by FTB are: an order suspending the registrable person's (i.e.: the Applicant's) reporting obligations for the length of time by which the registrable person's reporting period was extended under section 15 (3). 6 Section 15 of the (CPOR) Act deals with suspension and extension of reporting obligations. Section 16 refers to the Tribunal exempting persons from compliance with reporting obligations. Importantly, s 16(1) says the following: "This section applies to a registrable person; (a) Who is required to continue to comply with reporting obligations imposed by this part for the remainder of his or her life; or (b) This reporting period has been extended under s 15(3) whether or not he or she is a person referred to in para A". 7 FTB was convicted of sex offences and served a custodial sentence. At the time of the application and the hearing FTB remains a person who is a registrable person by reference to his convictions. The CPOR Act provides that a 'registrable person' is required to comply with 'reporting obligations' because they were convicted by a Court of a 'registrable offence', being a Class 1 or Class 2 offence as outlined in s 3 of the Act. 8 In January 2001 FTB was convicted of two counts of commit act of indecency on a person under 16 years, three counts of incest and one count of carnal knowledge. 9 When the CPOR Act commenced, incest and carnal knowledge were classified as Class 1 offences being considered more serious than Class 2 offences. The offence of commit act of indecency person under 16 years was classified as a Class 2 offence. The Tribunal observes that there have been changes to the CPOR Act since its commencement and that some of the terms have different applicability as a result. However for the purpose of these proceedings, whilst FTB was convicted and sentenced some months prior to the commencement of the CPOR Act in 2001, in our view after thoroughly examining the legislative provisions, FTB falls within the provisions of a 'registrable person'. We did not understand this issue to be in contest in the proceedings before the Tribunal. 10 A registrable person's reporting obligations for a person who completed the custodial component of their sentence in 2008 is 15 years. This is because FTB had been found guilty of more than one registrable offence but has not subsequently been found guilty of another (subsequent) registrable offence. Section 14 A (1) (b) (ii) provides: 14A Length of reporting period (1) A registrable person must continue to comply with the reporting obligations imposed by this Part for - (a) 8 years, if the person has only ever been found guilty of a single Class 2 offence, or (b) 15 years, if the person - (i) has only ever been found guilty of a single Class 1 offence, or (ii) has ever been found guilty of more than a single registrable offence but is not covered by paragraph (c), or (c) the remainder of the person's life, if the person is a registrable person in respect of - (i) a Class 1 offence and the person subsequently commits and is found guilty of another registrable offence, or (ii) a Class 2 offence and the person subsequently commits and is found guilty of a Class 1 offence, or (iii) a Class 2 offence and the person subsequently commits and is found guilty of another Class 2 offence and has ever been found guilty of 3 or more Class 2 offences. (Emphasis added) 11 The reporting period for FTB would have expired on 15 February 2023 had the period not been extended. The CPOR Act makes provision for the extension of a registrable person's reporting period if any of the factors in s 15 are enlivened. Section 15 of the CPOR Act provides: 15 Suspension and extension of reporting obligations (1) A registrable person's reporting obligations are suspended for any period during which - (a) the person is in government custody, or (b) the person is outside New South Wales unless the person is a person to whom Division 5 applies or the obligation is under section 11B, or (c) the person is the subject of an order in force under section 16 (or an equivalent order in a foreign jurisdiction), or (d) the person is the subject of an interim supervision order or extended supervision order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017. (2) The period for which a registrable person's reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (a). (3) The period for which a registrable person's reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (b) if, during the time in which the obligations are suspended, the registrable person - (a) is travelling outside Australia for one month or more or is resident outside Australia, and (b) is not required to report under any corresponding Act. (4) The period for which a registrable person's reporting obligations continue is extended by any countable period during which the person is in breach of the person's reporting obligations. (5) For the purposes of subsection (4), a countable period occurs when a person fails to make an initial report under Division 2, or an annual report under section 10, within one month after the day on which the report was due to be made. In such a case the countable period - (a) commences one month after the report was due to be made, and (b) finishes when the person reports the person's relevant personal information to the Commissioner of Police, and (c) does not include any period during which the person's reporting obligations are suspended. 12 In FTB's case various provisions of s 15 were enlivened when he travelled outside of NSW. Sections 15 (1) (b) and (3) (above) were enlivened when FTB travelled outside of NSW for a month or more and was not required to report. The records obtained by the respondents indicate a period of 1,329 days spent outside of NSW during the reporting period. Additionally the place where FTB spent the majority of that time was the United States of America (USA) which is a jurisdiction that does not have a similar reporting obligation law equivalent to the Act as specified in cl 5 of the Child Protection (Offender Registration) Regulation 2015 [(NSW)] (the Regulation). 13 As a result of these matters FTB's reporting period was extended by 1,329 days from 15 February 2023. And subject to any further suspensions will be due to expire on 7 October 2026. 14 However, in 2017 the Commonwealth Parliament passed legislation requiring persons on the Register to obtain permission of the relevant Police Force prior to engaging in overseas travel for the period that they were under supervision and remained on the Register. The Criminal Code Act 1995 (Cth) provides: Division 271A -- Overseas travel by certain registered offenders 271A.1 Restrictions on overseas travel by certain registered offenders (1) A person commits an offence if: (a) the person is an Australian citizen; and (b) the person's name is entered on a child protection offender register (however described) of a State or Territory; and (c) the person has reporting obligations (however described) in connection with that entry on the register; and (d) the person leaves Australia. Penalty: Imprisonment for 5 years. (2) Absolute liability applies to paragraph (1)(a). Note: For absolute liability, see section 6.2. (3) Subsection (1) does not apply if: (a) a competent authority (within the meaning of section 12 of the Australian Passports Act 2005 or section 13 of the Foreign Passports (Law Enforcement and Security) Act 2005) has given permission (however described) for the person to leave Australia; or (b) the reporting obligations of the person are suspended at the time the person leaves Australia. Note: The defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3). 15 As a result FTB requires Police approval whilst he remains on the Register, prior to engaging in overseas travel. FTB sought approval for overseas travel from NSW Police in 2022. FTB was seeking to travel to the USA from 15 August 2022 to 12 February 2023. NSW Police refused his application and declined to give permission for overseas travel. (For travel prior to the 2017 amendment to the Criminal Code Act 1995 (Cth) permission was not required). 16 The requirement for permission to engage in overseas travel persists whilst a person remains on the Register. 17 The CPOR Act provides for a person under reporting obligations to apply for a suspension of the order (in respect of the extended period) under s 16 (3A) of the CPOR Act. The application is made to the Tribunal and provides that the Tribunal may suspend the reporting obligations for the length of time for the extended period if the Tribunal is satisfied that an application does not pose a risk to the safety of children. The section provides: (3A) On the application of a registrable person referred to in subsection (1) (b), the Civil and Administrative Tribunal may make an order suspending the registrable person's reporting obligations for the length of time by which the registrable person's reporting period was extended under section 15 (3). (4) The Civil and Administrative Tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. (emphasis added) 18 FTB therefore seeks a ruling by the Tribunal that he does not currently pose a risk to the safety of children so that the Tribunal may suspend his reporting obligations for the period 16 February 2023 to 7 October 2026 inclusive."
After setting out its understanding of the law to be considered, making factual findings, and applying the law to those findings, the Tribunal indicated that it had not reached the requisite state of satisfaction that the appellant did not pose a risk to the safety of children.
It is apparent from the Decision that the following factors were considered important in that regard: 1. The appellant's history of non-compliance with his reporting obligations: Decision at [105]; 2. The proportion of the appellant's reporting period that he was not required to report because he was overseas and "beyond supervision"; Decision at [106]; 3. The Appellant's "absolute position that he has broadly done nothing wrong does little to establish insight into his past and [potential] future behaviour" and has implications for further treatment: Decision at [107], [110], [112], [114]; 4. The statements of independent and objective witnesses who recorded his disclosures about the relevant offending: Decision at [108]-[109]; 5. That an assessment that the appellant posed a low risk by a Dr Seidler was insufficient to satisfy the Tribunal that the appellant does not pose a risk to the safety of children: Decision at [111]; 6. That the appellant's appeals against his criminal convictions were unsuccessful and the evidence of the victim was corroborated to an extent: Decision at [113]; and 7. That the appellant knows, as a result of consorting notices and authorised inspection visits, that his actions are being monitored by NSW Police: Decision at [115].
For the reasons set out below, we have decided to refuse leave to appeal and dismiss the appeal on the basis no error on a question of law has been identified.

Non-Disclosure

Given the nature of the proceedings, we order that, under s 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the true names of the appellant, members of his family, and of non-expert witnesses who provided evidence in the proceedings at first instance are not to be disclosed, including by way of publication or broadcast.

Scope and nature of internal appeals

An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).

What is a question of law for the purposes of s 80(2) of the NCAT Act?

The Appeal Panel has recently confirmed that a question of law in the context of s 80(2)(b) should be interpreted similarly to "a question of law alone" or a "pure question of law". It excludes questions of mixed fact and law and, of course, questions of fact (at least unless they are facts of a jurisdictional nature): see Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Wollondilly); Samchris Pty Ltd v Keogh [2024] NSWCATAP 125; FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127; Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134.
We will proceed on that basis.

What are the principles governing leave to appeal?

The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to Secretary, Department of Family and Community Services v Smith (2017) NSWLR 597; [2017] NSWCA 206, where the Court said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."
Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9], cited with approval in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21: "... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice."

A new hearing?

We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17].
Whilst we may decide to conduct a new hearing, the parties did not ask us to do so here and we were not satisfied that the grounds for appeal warranted it.

The substance of the appeal

The Notice of Appeal raised several allegations of error, some of which could be reframed into questions of law. The respondents undertook the task of identifying the questions of law raised by the appellant in their submissions on the appeal. At the hearing, the appellant adopted those questions.
In that regard, the parties were agreed that the following questions of law needed to be considered, in addition to the question of leave to appeal, which was sought to challenge various findings of fact or mixed fact and law in the Decision in numerous discursive grounds: 1. Does the phrase "risk to the safety of children" used in s 16 of the CPOR Act, mean only from harm caused by being a victim of a Class 1 or Class 2 offence as those terms are contained in that Act; 2. Whether the Tribunal applied the wrong legal test in determining whether it considered that the appellant does not pose a risk to the safety of children; 3. Whether, by failing to have regard to the appellant's expert opinion and literature lodged in the proceedings, the Tribunal: 1. failed to take into account a mandatory consideration under s 16 of the CPOR Act; or 2. failed to exercise its jurisdiction by failing to deal with a clearly articulated argument on established facts; 1. Whether, in determining that the time the appellant spent in the United States is excluded from his reporting period, the Tribunal misinterpreted s 15(3) of the CPOR Act; 2. Whether, by considering the appellant's prior breaches of his reporting conditions, the Tribunal took into account an irrelevant, that is prohibited, consideration; 3. Whether, by failing to engage with the appellant's arguments as to the lawfulness of actions of NSW Police, the Tribunal: 1. failed to take into account a mandatory consideration under s 16 of the CPOR Act; or 2. failed to exercise its jurisdiction by failing to deal with a clearly articulated argument on established facts; and 1. Whether the Tribunal, in not reaching a state of satisfaction that the Appellant does not pose a risk to the safety of children, came to a conclusion that was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. In asking us to reach this conclusion, the appellant asked us to have regard to his individual grounds, or concerns, cumulatively, and as a question of law.

An application to rely on further or additional evidence

The Appellant seeks to rely on the following documents that were not in evidence at first instance: 1. literature about the efficacy of child sex offender registration schemes, published in 2018, 2019 and 2021; 2. an article about the risk of re-offending posed by perpetrators of incest and other "intrafamilial" sexual offending, published in 2016; 3. a Victorian government publication about masturbation, reviewed on 4 September 2023; 4. a document about the prevalence of men's pornography use, undated but citing research from 2020; 5. Legal Aid correspondence and notes dated 17 November 2021 to 1 December 2021; and 6. his applications for travel outside Australia, dated 2022.
Further (or additional) evidence is rarely of assistance in assessing questions of law, unless, for example, relied upon to establish the factual basis for an allegation of procedural unfairness or the like: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; [2003] FCAFC 143 at [13] cited with approval in Yuen v Thom above. In that event, evidence of why a party could not attend a hearing or comply with procedural directions may be required. In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 it was implicitly accepted that evidence that a written adjournment request was made, but not considered, was a relevant evidentiary precursor in that case to a finding of procedural unfairness. However, what those situations have in common is that the evidence does not go to the facts that were actually in issue between the parties in the proceedings. We will not admit the evidence in respect of the questions of law, but would be prepared to revisit that issue if relevant to leave or to the appeal if leave is given.

Submissions made, and further evidence lodged, without leave after the hearing

Subsequent to the hearing, and whilst we were reserved, the appellant sought to lodge further material, without leave. In that regard, we would reiterate what has been stated several times in this Appeal Panel, which is that such a course will generally not be countenanced, and that material lodged in that way will generally not be considered: see Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37; MPP Property Pty Ltd v Soliman Hospitality Pty Ltd [2021] NSWCATAP 90. We will not take that material into account.

Question One: Does the phrase "risk to the safety of children" used in s 16 of the CPOR Act, mean only from harm caused by being a victim of a Class 1 or Class 2 offence as those terms are contained in that Act?

It is by no means clear that this argument was made in the proceedings at first instance, which raises the question of whether we should entertain it in the appeal: Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28. However, it is a pure question of law that requires no recourse to evidence and the respondents did not oppose it being considered. The proper construction of this aspect of the Act is also a matter of general importance that has not been considered elsewhere. We will deal with it, on that basis.
Resolution of this question of law requires us to engage in a process of statutory interpretation. The principles of statutory interpretation were not in dispute between the parties. They were recently summarised by the plurality of the High Court (Gordon, Edelman, Steward and Gleeson JJ) in ENT19 v Minister for Home Affairs (2023) 410 ALR 1; [2023] HCA 18 at [86]-[87] as including the following principles: 1. the starting point is the text of the provision in issue, with regard also to be had to its context and purpose; 2. context should be regarded at the first stage and not at some later stage, and in its widest sense, including by reference to legislative history and extrinsic material; 3. the natural and ordinary meaning of a word is important, but understood in its statutory, historical or other context, another meaning of a word may arise; 4. if a word's ordinary meaning is not consistent with the statutory purpose of the Act, that meaning must be rejected; 5. the context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and the principles of construction may thus lead a court to adopt a construction that departs from the literal meaning of the words of a provision; 6. one such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals; 7. as Gageler J explained in SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [41], "statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means"; 8. where conflict appears to arise in construing an Act, "the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions", and this "will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 382 [70]; and 9. ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended.
The appellant submits that the definition of "risk to the lives or sexual safety of one or more children, or of children generally" in s 3AA of the CPOR Act means that the aim of the CPOR Act, and s 16(4) of the Act, is to protect children "specifically from harm caused by being a victim of a Class 1 or Class 2 offence".
Class 1 offences are defined to include such serious offences as murder. Class 2 offences include manslaughter or an offence that involves sexual touching or a sexual act against or in respect of a child, being an offence that is punishable by imprisonment of 12 months or more.
Section 3AA provides that: 3AA Risk to sexual safety of children - meaning (1) For the purposes of this Act, a person poses a risk to the lives or sexual safety of one or more children, or of children generally if there is a risk that the person will engage in conduct that may constitute a Class 1 offence or a Class 2 offence against or in respect of a child or children. (2) In order for a court to be satisfied that a person poses a risk to the lives or sexual safety of one or more children, or of children generally, it is not necessary for the court to be able to identify a risk to particular children, or a particular class of children. (3) A court is to take the following into account in determining whether a person poses a risk to the lives or sexual safety of one or more children, or of children generally - (a) the seriousness of each registrable offence committed by the person, (b) the age of the person at the time each of those offences was committed, (c) the age of each victim of each of those offences at the time that the offence was committed, (d) the seriousness of any other offences committed by the person, (e) the impact on the person if the order being sought is made compared with the likelihood that the person may commit a registrable offence, (f) any other matter that the court considers to be relevant.
That defined phrase is later found in various sections of the CPOR Act: 1. s 3C(3)(d) (discretion to treat child offender as non-registrable); 2. s 3D(2)(a) (child protection orders made during criminal proceedings); 3. s 3E(2)(a) (orders made after conclusion of criminal proceedings); 4. s 3F(2) (orders made in relation to foreign offences and old offences); and 5. s 3G(2) (child protection registration orders made after grant of bail under Mental Health and Cognitive Impairment Provisions Act 2020 (NSW)).
However, that phrase is not used in s 16(4). Section 16(4) requires the Tribunal to consider that a registrable person does not pose a "risk to the safety of children" - a broader formulation than that defined in s 3AA.
The respondent submits that s 16(4) (then numbered s 16(3)) including the phrase "risk to the safety of children" was already enacted in the CPOR Act when the phrase "risk to the lives or sexual safety" was introduced into the CPOR Act in 2004. On that basis it may be inferred that Parliament chose to use a narrower formulation in its new provisions than already appeared in then s 16(3) and what, by that time, was in use in the precursor to the Child Protection (Working With Children) Act 2012 (NSW) (WWC Act), being "risk to the safety of children" (see ss 8A and 9 of the Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)).
It appears that the appellant's contention may have its genesis in submissions made by the Children's Guardian at first instance, but the respondents submit that the Children's Guardian's submission at first instance was not that the criteria in the WWC Act was the same as in the CPOR Act. Rather, the submission was that the Children's Guardian's position on the proper construction of s 16 of the CPOR Act was consistent with a case on cognate legislation, and in making that submission the Children's Guardian observed that the test for risk stated in that case, "real and appreciable risk", provided the basis for the definition of "risk to the safety of children" in the WWC Act. The Children's Guardian's case proceeded on the basis that case law on "risk to the safety of children" in the WWC Act provided guidance to the Tribunal when considering whether it was satisfied that a person did not pose a risk to the safety of children under the CPOR Act. The Children's Guardian maintains that submission on this appeal. Indeed, the appellant agreed that the assessment of "risk to the safety of children" in s 16 of the WWC Act requires an assessment of "real and appreciable risk" in that regard, but maintains that it is a real and appreciable risk of "harm caused by being a victim of a Class 1 or Class 2 offence".
The appellant points to the objects of the CPOR Act in s 2A which, relevantly, include: "[T]o protect children from serious harm (including physical and psychological harm caused by physical or sexual assault)".
That reference to serious harm, the appellant submits, is consistent with his reading of the nature of harm to be imputed into s 16(4) of the CPOR Act. He says that interpretation is stronger where the reference to protection from risk of harm caused by being a victim of a Class 1 or Class 2 offence is used in other clauses of the CPOR Act. In the absence of evidence of specific risk factors, such as excessive alcohol consumption, drug use or an unstable domestic situation being applicable to him, the appellant submits that "the risk of re-offending is the primary consideration".
The respondents submit that it is not only the clear use of a different and specific statutory phrase in s 16(4), being "does not pose a risk to the safety of children" to that in s 3AA, being "risk to the lives or sexual safety of one or more children, or of children generally", which demonstrates the flaw in the appellant's construction of s 16 of the CPOR Act. In addition, the respondents note that, by invoking s 16 of the CPOR Act, an applicant is seeking an indulgence or dispensation from a statutory scheme that already applies to them, which is a logical reason for Parliament to have implemented a broader test. They also submit that, to the extent necessary to resolve any ambiguity, the history of implementation of the CPOR Act explains their interpretation of s 16, as it demonstrates that if Parliament wanted to amend the test in s 16 to reflect that new concept of risk to the lives or sexual safety of children, it would have done so when that concept was introduced into the CPOR Act.
The respondents submit that the working with children check laws were intended to operate in respect of the same offences as the CPOR Act. In those circumstances, any real and appreciable risk to the safety of children would be sufficient.
The respondents point, firstly, to the Second Reading speech in respect of s 16, which they say makes clear that s 16 was intended to operate in the same way as the Child Protection (Prohibited Employment) Act in terms of the bars on working with children and reporting obligations under the CPOR Act.
The concept of "risk to the lives or sexual safety of children" was introduced to the CPOR Act in 2004 amendments which commenced on 30 September 2004. Clause 15 of the Child Protection (Offenders Registration) Amendment Bill 2004 (NSW) (2004 Bill) inserted s 3D, which then provided for Child Protection Registration orders to be made where a person was found guilty of an offence that was not a Class 1 or Class 2 offence, conferring a discretion to extend the reporting scheme beyond people to whom it already applied.
This was also the amendment that allowed a person in the appellant's position to apply for a s 16(4) order because, until that insertion, only persons who were subject to mandatory reporting for life were able to apply for an order of that nature.
The passing of the 2004 Bill also inserted ss 16A and 16B into the CPOR Act, which provided for the cessation of orders under s 16 and applications for new s 16 orders after cessation. So when inserting the "risk to the lives and sexual safety of children" test into the CPOR Act, the respondents submit, Parliament directed its attention to s 16 but elected not to amend the test in it. The respondents submit that would have been an obvious and opportune time for Parliament to change s 16 if it was minded to do so.
Further amendments to these extension orders were made in 2007 and then the provisions of the CPOR Act were renumbered in 2018, again without amendment to the terms of s 16 of the CPOR Act.
The respondents also point to the sections prior to s 15 in which the risk to life or sexual safety of children test applies, referred to at [24] above, and submit that a clear legislative policy exists around the use of that test, as opposed to the risk to the safety of children test in s 16. In that regard, s 3C of the CPOR Act "Discretion to treat a child offender as a non-registerable" provides that a court can only make such an order if the Court is satisfied that the person does not pose a risk to the lives or sexual safety of children. This is another example, the respondents submit, of a statutory intent to invoke that test where a person is caught by the CPOR Act but may be relieved from its effect. In this case, on the terms of s 3C, that would involve an offence that involved conduct between two children and was not serious enough to warrant detention. In that case, the higher level of risk tolerance provided for in the narrower test would be due to the circumstances of the offending.
Similarly, s 3D of the CPOR Act provides for child protection orders to be made so that the Act applies to someone who was not found guilty of a Class 1 or Class 2 offence, but the court is satisfied that the person poses a risk to the lives or sexual safety of children if certain preconditions are met. Therefore, the Act provides for offending that does not meet Classes 1 or 2, but still poses a risk to the lives or sexual safety of children. The respondents submit that the narrower definition of risk is applied there because the person would not ordinarily have fallen within the scheme. In doing so, Parliament was conferring a discretion to extend the scheme to people it would not ordinarily apply to.
A similar proposition is put in respect of s 3E of the CPOR, where the Local Court may order a person whose been sentenced in the last 60 days for other than a Class 1 or Class 2 offence to comply with reporting conditions and, again in s 3F, which provides for the Local Court to make an order that certain people comply with reporting obligations who ordinarily would not have to. The respondents' argument proceeds by similar reference to s 3G.
In the Explanatory Note to the 2004 Bill, cl (c) provides that an object of the Bill was to "extend the operation of reporting requirements to other offenders by child protection registration orders, where there is a risk to the lives or sexual safety of one or more children, or children generally". So, the respondents submit, it can be seen that Parliament chose not to impose a narrower test for s 16 because it was intended to apply to people who fell within the statutory scheme, and s 16 provides for a dispensation from the ordinary operation of the scheme.
Read together with the other relevant provisions of the CPOR Act as now in force, and with regard to that statutory history in order to consider s 16 in its context, the respondents submit that Parliament's decision in sections that do not use words that import the definition in s 3AA is a deliberate legislative choice, and was made in respect of s 16(4) of the CPOR Act.
We agree with the respondents' comprehensive submissions in that regard. Where Parliament uses a specific phrase by reference to a defined term, that use should be considered deliberate. Similarly, where it deliberately uses different terms in the same enactment, those terms should be construed, prima facie, as having different meanings. That proceeds a fortiori here, given the statutory history to which the respondents have referred.
The answer to this question is "no".

Question Two: Whether the Tribunal applied the wrong legal test in determining whether it considered that the appellant does not pose a risk to the safety of children

The appellant asserts that the Tribunal found that it had to reach a state of "absolute satisfaction" or be "positively satisfied" that he did not pose a risk to the safety of children, as opposed to the need to be satisfied on the balance of probabilities. Again, the appellant's concern seems to have arisen at least in part from the Children's Guardian's submissions at first instance. Noting that the Tribunal used the words "positively satisfied" at [90] of the Decision, the appellant asserts that the Tribunal determined that he needed to be "positively risk-free".
The respondents say that the Children's Guardian's actual submission in the proceedings at first instance was that "the Tribunal was not to make an order unless it positively considers that the applicant does not pose a risk to the safety of children". That is, the word "positively" was not used in the sense of requiring the Tribunal to be positive that the appellant does not pose a risk to the safety of children but was used to refer to the state of mind the Tribunal must reach, in that it must actively form the view that it considers that the appellant does not pose a risk to the safety of children.
The respondents concede in the appeal that the test was better put in K, MP v Commissioner of Police [2017] SASC 38 at [15], in respect of equivalent legislation: "Section 38(2) … is in the nature of a jurisdictional fact. Unless the Court reaches a state of actual satisfaction that the registrable offender does not pose a risk to the safety and well-being of any child or children, it cannot exercise the power to suspend the registrable offender's reporting obligations."
The respondents submit that the Decision makes it clear that the Tribunal properly understood the Children's Guardian's submission and applied the law correctly.
We agree that this is clear from the structure of the Tribunal's reasons. The respondents point out, correctly, that the references of concern to the appellant, in [78] and [90] of the Decision, appear under the heading: "Respondent (Children's Guardian's) Submissions" and record: "78 The Children's Guardian submitted that the proper construction of s 16 (3A) required the Tribunal to positively consider that FTB does not pose a risk to the safety of children. In this regard the starting position is that the Tribunal cannot make an order unless it is so satisfied and in those circumstances an onus is placed on FTB to positively establish that he is not a risk. … 90 The Children's Guardian submitted that notwithstanding the passage of time since the offending, the offences were extremely serious and FTB's attitude to his offending, continued denial and lack of treatment, establish that the Tribunal could not be positively satisfied that he does not pose a risk to the safety of children."
On the other hand, in the Decision at [27] under the heading "Jurisdiction of the Tribunal", the Tribunal had already set out its own understanding of its task as, relevantly: "[t]he issue to be decided by the Tribunal is whether on the balance of probabilities FTB does not pose a risk to the safety of children".
Whilst the Tribunal's Decision is not to be understood by virtue of exchanges in submissions, our assessment by reference to the reasons is only reinforced by exchanges between the parties and the Tribunal recorded at page 9, line 12, and at page 149, line 31, to page 150, line 30 of the transcript of the first instance proceedings: RB135; RB275-276.
A second aspect of this allegation of error relates to the Tribunal's understanding of what reaching a state of satisfaction the appellant posed "no risk" meant. Specifically, whether the Tribunal understood it to mean "no real and appreciable risk", which the parties agree, and we accept, is a proper formulation of the question in context: see Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42]; CXZ v Children's Guardian [2020] NSWCA 338 (CXZ). Again, though, this issue is addressed squarely by the Decision, where the Tribunal referred to the test of "real and appreciable risk" at [89]. At [110], the Tribunal made a finding in terms of the correct, and unembellished statutory task it faced. There is no reason to impute the error asserted by the appellant simply due to the Tribunal recording the respondents' submissions.
The answer to this question is "no".

Question Three: Whether, by failing to have regard to the appellant's expert opinion and literature lodged in the proceedings, the Tribunal: failed to take into account a mandatory consideration under s 16 or the CPOR Act; or failed to exercise its jurisdiction

Part of the "expert opinion and literature" to which the appellant refers in his written submissions consisted of a page within an article published in 2016 entitled "Differences in Risk Scores among Intrafamilial and Extrafamilial Sexual Offenders" and a page of an article published in 2019 entitled "Evaluating the legal assumptions of Victoria's Sex Offender Registration Act 2004 from a psychological perspective". However, as the appellant concedes, and as is confirmed by his index to evidence, these articles were not before the Tribunal at first instance. The appellant thought his solicitor would lodge that evidence, but apparently made no enquiry about whether it had occurred.
For that reason, we accept the respondents' submission that the Tribunal did not err by not taking into evidence which was not provided to it. The contrary would only apply where the evidence could arise from "inquiry into factual matters which can readily be determined and are of critical significance to a decision": Wollondilly at [38]; Gallagher v Northern NSW Local Health District [2023] NSWCATAP 245 at [48] citing Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [20].
That is not an apt description of the evidence to which the appellant refers. The answer to this question in respect of that evidence is "no".
However, during submissions, the appellant made a like allegation about the Tribunal's treatment of the evidence of a Dr Seidler, a Clinical and Forensic Psychologist who had provided two reports concerning the appellant's mental state, dated 20 December 2007 and 28 February 2023. Dr Seidler was also cross examined in the hearing at first instance. The evidence of Dr Seidler that, in the appellant's view, was critical to the Tribunal's assessment of risk, but was ignored, included that: 1. After ten years in the community without re-offending, the unavailability of risk assessments that have reliable data indicates that, from this time, risk of re-offence is equivalent to any other member of the community; 2. The risk of re-offence was assessed as equating to 1.4% in 2007 and it is reasonable to suggest that FTB's risk of future sexual offending would be even lower than this now; 3. This was further supported by FTB's advanced age as the risk is known to decrease substantially once an individual attains 60 years of age; 4. FTB does not present with self-regulation difficulties; 5. FTB does not present as anti-social, is of advanced age, and productive in the community. He has a long term stable and committed partnership, is well supported and does not present with coping concerns. He does not endorse child sexual abuse; 6. There was no evidence of ongoing risk in this case and rather whatever risks were present that contributed to FTB's sexual offending appear to have long since resolved; and 7. There appears to be little utility in terms of either risk management or assisting police in monitoring the risk of future sexual abuse by maintaining FTB on the CPOR Act.
The appellant, by inference, submits that if that evidence had been taken into account by the Tribunal, then it could not have reached the conclusion it did about the level of risk he posed to the safety of children. He notes that those aspects of the evidence were not specifically referred to in the Decision.
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 the High Court explained that, in certain circumstances, failing to deal with a substantial argument clearly articulated by a party on established facts may be jurisdictional error and therefore an error of law. How that assessment is to be effected as a question of law was further explained in Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 (Alexandria Landfill) at [22] and [24] (per Basten JA with Leeming JA in agreement): "22 It follows that the relevant grounds in a case alleging error of law are not expanded by reference to a constructive failure to exercise jurisdiction. If there has been jurisdictional error (including with respect to the determination of jurisdictional facts) there will have been error of law which can be addressed on an appeal limited to a question of law. In a case where a court has set out the competing material (thus engaging with an issue) and decides in favour of a particular result, without explaining why, the reasons will fail to meet the criterion of transparency required of judicial decision-makers. Where some reasons are given, expressly or implicitly the element of transparency may well be met, even if an appellate court considering an appeal by way of rehearing would find the reasons flawed. … 24 If all the material evidence and submissions are identified in the reasons, the basis of challenge becomes a failure to record the process of reasoning from the evidence to a particular finding or outcome. …"
In Day v SAS Trustee Corporation [2021] NSWCA 71, Meagher JA explained the application of the principle at [37]: "As those decisions illustrate, a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his "three key issues" were not stated and determined discretely. What he must show is that they raised "substantial" (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant's claim to have been incapable, by reason of a chronic adjustment disorder, of exercising the functions of a police officer at the time of his resignation."
The Tribunal recorded Dr Seidler's evidence in the Decision at [51]-[58]: "51 In evidence in chief Dr Seidler adopted her report dated 28 February 2023. 52 The witness was taken to [96] of the report where matters to reduce FTB's risk of offending are explored. The passage of time, FTB's aging, 15 years in the community without sexual offending, a lack of physical coercion in the offending, lack of anti-social and psychotic presentations and a lack of history of his own child abuse or substance abuse amongst other matters listed the positive matters. Paragraph [97] listed factors which elevate FTB's future risk of offending. A sex drive higher than for a man his age, the endorsement of age appropriate sexual interests (not involving children), the nature of the relationship (family) between victim and offender causing psychological concerns around FTB, the continued maintaining of innocence by FTB. The witness agreed that these factors elevate risk but that they need to be balanced against the factors set out at [96] of her report. 53 At [102] of her report the witness refers to there being no evidence of any ongoing risk. The witness clarified this as well as the contents of [103] by indicating that there was no evidence in the material before her of any ongoing risk and that referring to the literature the position being that once a person was offence free for over 10 years, risk assessments become of limited value as the risk is deemed to be low. 54 Reference was made to the witness referring to FTB's denials and that at page 30 of her report reference is made to the fact that even though FTB denies any offending, due to the passage of time, functioning relationships and behaviour since, there is little reason to assume this denial is associated with risk in any tangible way. 55 In cross examination the witness was asked about FTB's static risk factors and she clarified that these were actuarially or statistically based whereas the dynamic risk factors were determined on the basis of clinical judgement. 56 The witness said that she first dealt with FTB over the telephone in March 2007 where she agreed to treat him post release from custody. There was a two hour meeting on 18 December 2007 in preparation for his parole report. There were subsequently five sessions in 2008 and no further treatment by her. 57 The witness was taken to [41] of her report where she refers to FTB being disconnected with other persons engaged in anti-social culture. The witness was asked whether her assessment would be different if FTB had contact with sex offenders. The witness said that her assessment might change but only if she knew the nature and details of that contact. 58 At [47] reference was made to FTB's children and their children and successful careers. The matter of FTB's son being on the Register was raised and the witness was asked whether that would change her risk conclusions for FTB. The witness said that the son being on the Register was concerning but that it did not change her overall risk assessment."
The Tribunal made findings in respect of Dr Seidler's evidence at [111]-[112] of the Decision: "111 Whilst we accept Dr Seidler's report we maintain that even with the low risk rating, the risk in our view is sufficient to prevent us making a finding that FTB does not pose a risk to the safety of children. Whilst we accept Dr Seidler's professionalism we note that initially she was engaged in treating FTB, albeit some years prior at the time of his release, and more recently for these proceedings she was engaged to provide an independent assessment. We note that unlike clinicians, it is the Tribunal's role to be the finder of fact in a matter such as this. We find that notwithstanding the balancing of the static and dynamic risk factors, the significant passage of time and the lack of any similar offending in the intervening period, we cannot be satisfied that FTB does not pose a risk to the safety of children. 112 We make this finding on the totality of the evidence, weighing up significantly the evidence about the offences and FTB's attitude to those offences. Without making any diagnosis or factual finding we are concerned on the evidence before us, as to whether FTB holds the requisite insight and protective factors to enable him to not currently be considered a risk to the safety and well being of children. This test from the related legislation (the WWC Act) is grounded in FTB's lack of understanding or acceptance that his behaviour (or similar behaviour) could constitute a risk of harm to a child."
As Basten JA also noted in Alexandria Landfill at [29]: "… If there is an available process of reasoning from the evidence to the outcome which has been adopted, either expressly or by implication, the appellate court should be slow to reach the conclusion that the function of the trial court has not been exercised according to law."
We do not think that the impact of Dr Seidler's evidence, which was clearly considered, and indeed accepted by the Tribunal is, relevantly the "clearly material argument" the Tribunal needed to engage with. It was simply relevant evidence. The substance or gravamen of FTB's claim was that he did not pose a risk to children, not that the accepted evidence of Dr Seidler prevented a finding to the contrary. Even if that had been the argument, the Tribunal would not have erred. Ultimately, it is for the Tribunal and not an expert to make the assessment under s 16(4) of the CPOR Act: BKE v Office of Children's Guardian [2015] NSWSC 523 (BKE) at [120]; DCZ v Children 's Guardian [2018] NSWCATAD 81. Dr Seidler's evidence that the appellant places particular weight on went to assessing a likelihood of recidivism, and not to the broader test of risk.
Other evidence of Dr Seidler demonstrated that some factors indicated ongoing risk of reoffending, let alone risk under the broader test in s 16(4), which the Tribunal also accepted, including that FTB: 1. maintains a sex drive that is higher than would commonly be the case for a man of his age; 2. endorsed age-inappropriate sexual interests but these are not related to underage children; 3. engaged in psychological coercion in his sexual offending by virtue of the nature of the relationship between victim and offender; and 4. continues to maintain his innocence of the sexual abuse of his daughter, but the relationship of this to risk is limited.
Therefore, we are not satisfied that the Tribunal erred in the sense explained in Alexandria Landfill when considering Dr Seidler's evidence. The answer to the question posed is "no".

Question Four: Whether, in determining that the time the appellant spent in the United States of America is excluded from his reporting period, the Tribunal misinterpreted s 15(3) of the CPOR Act

This formulation of a question of law by the respondents, to assist the appellant, is somewhat generous. The appellant's actual ground was that the Tribunal "failed to properly apply time spent without supervision as more than sufficient to count towards the legislative mandated 15 years". In support of that contention, the appellant submits that the "legal and policing systems are robust" in the United States, where he spent time during his reporting period.
Section 15 of the CPOR provides, relevantly: 15 Suspension and extension of reporting obligations (1) A registrable person's reporting obligations are suspended for any period during which - .. (b) the person is outside New South Wales unless the person is a person to whom Division 5 applies or the obligation is under section 11B, or … (3) The period for which a registrable person's reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (b) if, during the time in which the obligations are suspended, the registrable person - (a) is travelling outside Australia for one month or more or is resident outside Australia …
The appellant's complaint is really as to the effect of the statute, which he views as unfair on him, rather than identifying any error by the Tribunal. No comprehensible submissions as to error of this nature were advanced and we agree with the respondents' submission that a decision to enact s 15 in its terms is a matter for Parliament and not open to be questioned in these proceedings.
Periods of a month or more spent in another country will not count for an extension of the reporting period under s 15(3) of the CPOR Act if the Child Protection (Offenders Registration) Regulation 2015 (NSW) (CPOR Regulation) lists that country's relevant law. The only foreign law stated to be a "corresponding Act" for the purposes of the CPOR Act in the CPOR Regulation is the Sexual Offences Act 2003 of the United Kingdom: reg 5(f).
The criterion for excluding time spent in another jurisdiction from a period for which a registrable person's reporting obligations are to continue is, relevantly, the absence of a requirement to report under any corresponding Act as defined in the legislation, not whether a country's "legal and policing systems are robust".
The answer to this question is "no".

Question Five: Whether, by considering the appellant's prior breaches of his reporting conditions, the Tribunal took into account an irrelevant, that is prohibited, consideration

It is uncontroversial that the appellant had two recorded breaches of his reporting requirements under the CPOR Act. Similarly, it is uncontroversial that on neither occasion was he severely sanctioned by the sentencing Court.
The Tribunal mentioned this at [64] of the Decision: "We agree that there are no matters of extreme seriousness since and similar to FTB's primary offending. There were two parole breaches and matters relating to non compliance with reporting requirements but these matters were considered minor by the Court and did not result in a further period of incarceration. …"
A consideration is irrelevant, in the legal and appellate sense, if it is prohibited by the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40; [1986] HCA 40 (Peko-Wallsend).
The appellant did not seek to identify how prior breaches of the CPOR Act would be irrelevant in that sense to the Tribunal's assessment about whether he posed "no risk to the safety of children" under s 16(4). Nor can we identify how it would be. It was clearly probative to that assessment and the matter of weight given to that issue was a matter for the Tribunal not able to be challenged as a question of law in this manner: Peko-Wallsend.
For completeness, despite it not being specifically pressed before us, that analysis would lead to the same result in respect of the Tribunal's reliance on the evidence of a Dr Quadrio and a Mr Chandran, to whom the appellant was said to have made admissions before his criminal convictions, and to the evidence relating to the appellant's ongoing denial of guilt for the offences he was convicted of, and the inference that he had failed to demonstrate insight into his offending.
The answer to this question is "no".

Question Six: Whether, by failing to engage with the appellant's arguments as to the lawfulness of actions of NSW Police, the Tribunal: failed to take into account a mandatory consideration under s 16 of the CPOR Act; or failed to exercise its jurisdiction by failing to deal with his allegations in that regard

The appellant raised in the proceedings at first instance, and repeated before us, allegations that the NSW Police have engaged in targeted and inappropriate behaviour toward him and his wife that is having a negative effect on their well-being. We infer that he asserts that behaviour occurs because of his inclusion on the Register.
Whilst it would have been open to the Tribunal to go on to make findings in the alternative about whether it would have exercised its discretion to make the order sought by the appellant under s 16(4) of the CPOR Act, despite not being first satisfied that he posed no risk to the safety of children, it did not do so.
The appellant did not meaningfully argue that the action of Police toward him was a mandatory consideration in the Peko-Wallsend sense to the Tribunal's preliminary finding as to the jurisdictional matter of him posing no risk under s 16(4). In our view, it could not be probative to that question on the material before us and was not a mandatory consideration. Had the Tribunal overlooked consideration of it in making alternative findings as to the exercise of its discretion, it may have erred in the Alexandria Landfill sense, given the appellant's argument that, perhaps crudely summarised, he needs some respite from the asserted Police conduct. However, that is not what occurred.
The answer to this question is "no".

Question Seven: Whether the Tribunal, in not reaching a state of satisfaction that the Appellant does not pose a risk to the safety of children, came to a conclusion that was irrational, illogical and not based on findings or inferences of fact supported by logical grounds

In BKE, the Court explained the basis on which a decision that involved the Tribunal reaching a state of satisfaction in applying the law to the facts as found can be challenged in this context. The Court said, with the citations omitted: "112 These grounds attack various findings of fact made by NCAT. The starting point is to ascertain the basis upon which such a challenge can be made. There are three relevant standards. The first is applicable to facts the objective determination of which was a matter upon which NCAT's power or jurisdiction depended. If the facts are of that character then this Court can determine them. This possibility can be put aside as these facts are clearly not of that character. 113 The second standard is apposite where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction by NCAT depended. Such a state of satisfaction or opinion is a "jurisdictional fact". If the power is so conditioned then facts found in the course of forming that opinion or satisfaction can be reviewed on a wider basis than merely enquiring as to whether there was some evidence to support them. Instead it has been held that such an opinion or state of satisfaction can be reviewed if "the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds."
Given our findings in respect of the previous grounds, it will be apparent that the Tribunal did not err in this manner. In reaching its conclusion on the jurisdictional fact, the Tribunal was required to determine "whether on the evidence" (and that means the whole of the evidence) the applicant poses no risk to the safety of children": in a like context see CXZ at [79] per Simpson AJA with McCallum JA in agreement, citing M v M (1988) 166 CLR 69; [1988] HCA 68.
The Tribunal did so by weighing the evidence as to risk, both in a positive and negative sense. Having done so, it rationally explained why it did not reach the requisite state of satisfaction.
The answer to this question is "no".

Leave to appeal, and a reconsideration of admitting the further evidence

The appellant did not formally abandon his application for leave to appeal on other grounds but he did accept that they could be considered cumulatively via ground 7.
Otherwise, the appellant made no meaningful submissions as to why leave to appeal should be granted. In our view, by resolving the questions of law above, we have dealt with any issues of general principle or public importance in the appeal. As to an injustice that is clear, we have already determined that the Tribunal's decision was not capricious or illogical, and was grounded on its assessment of the evidence before it.
Whilst, no doubt, we may come to a different conclusion to the Tribunal if we were to grant leave and reconsider the matter by way of rehearing, that is not the test to be applied. In the absence of the appellant demonstrating error in any of the ways outlined in the questions of law, we would simply be granting leave to consider substituting our state of satisfaction for that of the Tribunal and, if we reached a different conclusion as to the jurisdictional fact that the appellant poses no risk, exercising the remaining discretion under s 16(4) of the CPOR Act.
Furthermore, we would be doing so without the advantages enjoyed by the Tribunal at first instance that included seeing and hearing the appellant in evidence. The other errors alleged by the appellant in his Notice of Appeal and submissions, which we noted at the outset were lengthy and discursive, were not directly addressed by the appellant in oral submissions and assessing the written submissions would, to an extent, require us to "undertake a partisan analysis of lengthy, unstructured assertions … with a view to ensuring that a self-represented litigant has not missed some arguable point": as that phrase was used in Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21], per Meagher JA with the Court in agreement.
Nor would we be minded to admit the further evidence the appellant seeks to rely on, referred to above at [16]-[18]. All of it was reasonably available to the appellant when the proceedings at first instance were conducted and, if relied on there, may have affected the course of cross examination of Dr Seidler. No compelling reason has been put by the appellant as to why this further material should be admitted into evidence in an appeal of this nature.
The Tribunal did not go about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result. It construed and applied the law correctly. The alleged error is no more than merely arguable. Leave to appeal is refused.

Orders

Our Orders are as follows: 1. Leave to appeal is refused. 2. The appeal on questions of law is dismissed.

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: 06 September 2024

Child Protection (Offenders Registration) Regulation 2015(NSW)

Child Protection (Prohibited Employment) Act 1998(NSW)

Mental Health and Cognitive Impairment Provisions Act 2020(NSW)

(2020) 103 NSWLR 479

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (46)

Cited By (5)