GGE v Children's Guardian

Background

1. On 23 January 2024, GGE applied to the respondent for a working with children check clearance, nominating 'authorised carer' as the child-related employment sector. The respondent applied for a criminal history check, which identified that GGE had two criminal convictions, one common assault (domestic violence) and the other for assault with an act of indecency (domestic violence). On 25 July 2013, he was sentenced in respect of both convictions to a good behaviour bond for two years. The criminal records check also revealed that GGE had been charged with five counts of common assault or assault occasioning actual body harm bodily harm (domestic violence) on 1 November 2018. All charges were dismissed and he was found not guilty after a hearing. The criminal history check was dated 30 January 2024.
2. By written decision dated 30 January 2024, the respondent notified GGE that he was a disqualified person, being a person who had been convicted of an offence specified in Schedule 2 of the WWC Act and, as such, the respondent must not grant him a working with children check clearance.
3. The disqualifying offence identified was s 61L of the Crimes Act 1900 (NSW) (the Crimes Act) for committing assault with an act of indecency. GGE was notified that he was barred from working with children for five years and that he could not make a further application for a working with children check clearance without the permission of the respondent for five years after the date of the notice. He was also notified that if he was eligible to appeal, he could apply to the Tribunal for an enabling order. It was noted that if an enabling order was granted, the Tribunal would make an order declaring that he should not be treated as a disqualified person, and he would be granted a working with children check clearance.
4. There is no dispute that GGE is entitled to appeal and, accordingly, his appeal is competent, although lodged out of time, which has been resolved by the Tribunal granting an extension of time to make the application.
5. On receiving notice of the criminal record, the respondent obtained court records relating to the 2013 criminal convictions and proceedings, which comprised court attendance notices, police statements, police factsheets and transcripts of the hearing. The respondent issued summonses to NSW Police and the Campbelltown Local Court for documents relating to both the 2013 and 2018 proceedings. The contents of these documents are summarised later in this decision as part of the evidence before the Tribunal.
6. GGE's conviction for the disqualifying offence arose from conduct in which he engaged on the evening of 21 April 2023 in relation to his then ex-partner. GGE and his ex-partner had been together for about 14 years. They have four children together. At the time of the incident, the children were 13, 12, 11 and 5 years old and they all lived at home. The background to the offending is that the relationship between GGE and his partner had broken down over the previous 6 to 12 months. They shared custody of the children and there was an agreement, leading up to the incident, that they would take turns living in the house. On the night of the evening of 21 April 2013, there was an altercation between GGE and his ex-partner, the details of which are set out in below, as a result of which both GGE and his ex-partner attended the local police station in relation to the incident. GGE was charged with offences of common assault and assault with an act of indecency, to which he pleaded not guilty. He was found guilty of these offences on 25 July 2013. GGE was sentenced to good a behaviour bond for a period of two years and was made subject to an apprehended violence order for the same period.
7. In 2018, GGE was charged with two counts of assault occasioning actual bodily harm and three counts of common assault. The charges arose from three separate incidents which occurred in February 2018 in relation to another former partner. The incidents that gave rise to the allegations appear to relate to the breakdown in their relationship. GGE was acquitted of each of the five charges following a hearing on 1 November 2018.
8. GGE met his current partner approximately in about 2018. They have been married for two years and they have a child who is 5 years old. They are involved in dog breeding. GGE says he is retired.

Statutory framework

1. The WWC Act establishes a statutory scheme to protect children by not permitting certain person to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances. This is the sole object of the WWC Act as set out in s 3. Section 4 provides that the safety, welfare and well-being of children, and in particular, protecting them from child abuse, is the paramount consideration in the operation of the WWC Act.
2. Section 5B of the WWC Act provides that a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.
3. The term child-related work has the meaning in ss 6 and 7 and involves direct contact by the worker with a child or children where that contact is a usual part of and more than incidental to the work. Section 8 provides that a worker must not engage in child-related work unless the worker holds a working with children check clearance of a class applicable to the work. Section 12 provides for two classes of working with children check clearances, namely volunteer clearances, authorising workers to engage in unpaid child-related work, and non-volunteer clearances, authorising workers to engage in paid and unpaid child-related work.
4. Section 13 provides that a person may apply to the respondent for a working with children check clearance. The application must specify the class of clearance applied for. A person who is refused a working with children check clearance or whose clearance is cancelled is not entitled to make a further application for clearance until five years after the date notice of the refusal or cancellation was given to the person or unless a further early application is permitted: s 13A of the WWC Act.
5. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in Schedule 1 to the WWC Act apply to the person. Schedule 1 identifies the assessment requirement triggers. They comprise cases where there are proceedings and/or convictions against a person in relation to certain criminal offences, findings of misconduct against a person involving children, notifications of reportable conduct and negative notices in other jurisdictions. Section 15 provides that the respondent must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of the children if the respondent becomes aware that the applicant, or holder, is subject to an assessment requirement. Section 15(4) sets out the matters that the respondent may consider when making an assessment.
6. Section 18 of the WWC Act sets out how the determination of applications for clearances must be made and provides as follows: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons ("disqualified persons")-- (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.
7. Schedule 2 identifies "disqualifying offences" for the purposes of s 18. Clause 1 enumerates the offences that are specified to be disqualifying offences. The offences include murder, manslaughter of a child, an offence involving intentional wounding of, or intentional causing of grievous bodily harm, to a child by an adult who is more than three years older than the victim, rape or attempted rape and, relevant to the facts of this case, an offence under s 61L of the Crimes Act 1900 (NSW).
8. Clause 2 provides: Excluded offences An offence is not specified for the purposes of this Schedule if it was an offence specified in this Schedule at the time of its commission and the conduct has ceased to be an offence in New South Wales.
9. GGE was convicted of indecent assault pursuant to s 61L of the Crimes Act on 25 July 2013. The respondent found that GGE was a disqualified person by reason of this conviction and refused his working with children check clearance under s 18(1).
10. Sections 61L (indecent assault) to 61O (aggravated indecent assault) were repealed by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).
11. An issue that therefore arises, which was not raised by either party at the hearing or in submissions, is whether GGE is a "disqualified person" within the meaning of s 18(1), given that the original offence for which he was convicted has been repealed. This is a critical threshold issue and our findings on this matter are set out later in these reasons.
12. Section 27 provides that a person who has been refused a working with children check clearance by the respondent may apply to the Tribunal for an administrative review of this decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) Section 28 relates to enabling orders and provides: 28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if- (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled under section 23, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children's Guardian in accordance with the Tribunal's order. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions.
13. Section 30 sets out the matters the Tribunal must consider in determining applications under sections 27 and 28. Those matters replicate the provisions the respondent may consider as set out in s 15(4) of the WWC Act. Notably, these considerations are discretionary for the respondent but mandatory for the Tribunal. Section 30 relevantly provides as follows: (1) The Tribunal must consider the following in determining an application under this Part-- (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or Tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary.
14. If the Tribunal is considering making an enabling order, it must also consider the supplementary tests contained in s 30(1A) which provides: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that- (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.
15. In BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523, Beech Jones J observed that s 28 confers two relevant powers on the Tribunal, namely a power to make an enabling order in respect of a disqualified person and a power to order the respondent to grant a person clearance under s 28(6). His Honour also notes that the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children.
16. As such, when considering whether an enabling order should be made, the Tribunal must be positively satisfied that the applicant does not pose a risk to the safety of children. In making this determination, the Tribunal must have regard to the mandatory considerations in s 30(1). Before an enabling order can be made, the Tribunal must also be satisfied about the supplementary tests in s 30(1A) of the WWC Act. If the presumption is not displaced and satisfy the Tribunal is not satisfied that GGE does not pose a risk, it is unnecessary to consider the supplementary tests.

Outline of Evidence

1. The evidence before the Tribunal comprised the respondent's tender bundle of documents lodged pursuant to s 58 of the ADR Act and the Tribunal's directions and the oral evidence and submissions of GGE. The respondent filed extracts of documents in relation to GGE's alleged criminal offending which were provided by NSW Police and the courts under summons.
2. Included in the respondent's tender bundle is a court attendance notice which particularises the 2013 charges. It is recorded that GGE was charged with assault with an act of indecency, domestic violence related, in that between 9:00 and 10:00pm on 21 April 2013 he assaulted his ex-partner and committed an act of indecency on her by grabbing her breast and touching her groin region. The respondent also provided statements from witnesses, a transcript of interviews undertaken at the police station at the time the incidents were reported, and a factsheet submitted by NSW Police to the court.
3. According to the statement provided by GGE's ex-partner she was lying in the bed when GGE came in and said that he was going to sleep with her in the bed. She tried to roll away from him and he put his hands on her crotch. He left the room and later came back into the room to get into the bed next to her and put his hand on her breast. The children were in the house at that time. GGE's ex-partner described the altercation, stating that GGE continually attempted to put his hand inside her underwear when he was in the bed with her. She told him on a number of occasions to get away from her and she eventually decided to leave the room. She said that he then slapped her on the left side of her face. She stated that she was scared and in shock and the children came into the lounge room. She decided to report the matter to the police and when GGE protested that he would get locked up, one of the children reportedly then said, "please don't send daddy to gaol". According to GGE's ex-partner, the children were very upset. She reported the incident to the local police station at that time.
4. The statement of GGE's ex-partner refers to earlier incidents when she alleges that she came into the bathroom while she was having a shower and started filming her without her consent. She also alleges that she touched her from behind and sexually assaulted her and made sexual comments. This allegation was not the subject of any charges.
5. GGE also attended the local police station following the incident and was interviewed by police. He said that the relationship between he and his ex-partner had ended about 12 months ago but officially six months ago. Two of the children had decided to live with him. The living arrangements were not entirely clear, but it appears from GGE's statement to police that he and his ex-partner were still sleeping in the same house much of the time but not in the same bed. GGE told police that his ex-partner had been in Victoria for a period of time.
6. He gave a different account to police about the incident than the account given by his ex-partner, stating that he was in the bedroom at the time and that she came into the bedroom and wanted him to get up to look after the children. The youngest child was on the lounge sleeping because she was unwell. He stayed in the bed, and they argued. He said that he tried to cuddle her, and she started to get emotional and attacked him. He later told police that it was a "sarcastic" cuddle. He said that he would not have grabbed her on the breast it would have been more of a flick. It was not a sexual grab. He denied putting his hand down between her legs. He stated that they were wrestling in bed which is why she may have been on top of him.
7. GGE was convicted of the offences of common assault and assault with an act of indecency on 25 July 2013 and placed on a good behaviour bond for two years. The Tribunal was not provided with the record of the hearing, or the sentencing remarks made by the Magistrate on that day.
8. An apprehended violence order was made in favour of GGE's ex-partner on 24 June 2013 for a period of two years. Under the terms of the final order, GGE was not allowed to enter the premises where his ex-partner resided or worked.
9. When GGE gave evidence about this incident to the Tribunal, he said that his ex-partner had fabricated these allegations and that he had not been able to defend himself properly. The children were living with him at the time. He said that she had sent him a text to the effect "I am not paying you child support and this is the only way that I can get the children". According to GGE, the Magistrate was not interested in hearing his side of the case and he decided not to appeal because he did not have funds. He denied that he had committed the conduct as alleged. He repeated the evidence that he had given to the police officers in the interview that he had cuddled his ex-partner on purpose to irritate her and to get her to leave the bed. He said they had a very bad relationship by this stage and that she had entered into another relationship during the marriage and that his children believed that she should not be living in the house. They chose to live with him.
10. GGE said that on the night of the incident his children were at home and two of the children were playing with his nephew, who was also staying at the house. He said that he could not remember the detail of what happened because it happened over 12 years ago and could not recall the earlier incident alleged by his ex-partner. He denied putting his hand on his ex-partner's groin area and said that she was also grabbing him at the time. She attacked him and he had injuries on his face which were photographed by police and included in the police brief. He agrees that he slapped her in the face but said that this was in self-defence.
11. GGE was asked whether this altercation with his ex-partner was harmful to the children and, in particular, the statement he reportedly made to the children that if his ex-partner complained to police, he would go to gaol. GGE said that he did not consider that this was harmful, and that the problem had arisen because his ex-partner chose to have an affair with someone else. He denied the other allegations made against him and said that after the apprehended violence order it was very difficult for him to continue to have a relationship with his children. He was not able to visit them at their home and while there was a meeting point, he was concerned about creating more conflict.
12. GGE entered into a relationship with another woman in about 2015. They were in the relationship for about three and a half years. After that relationship broke down in about February 2018, she made allegations of assault against him. GGE was charged with several counts of assault relating to these incidents, which allegedly took place in February 2018. There was a trial on 1 November 2018 and all charges were dismissed. The allegations made in respect of three separate incidents are set out in the police factsheet which was contained in the material provided by the respondent.
13. The first allegation is that GGE and his then partner engaged in a verbal argument relating to concerns she had about his infidelity with a neighbour. She took his mobile phone, he asked for the phone to be returned and when she would not give it to him, he pushed her causing her to fall. GGE's partner did not contact the police at that time or seek medical treatment.
14. Shortly after this, another incident occurred when GGE and his then partner were in the car driving. His partner was not wearing clothing on the lower half of her body at the time because he had rushed her out of the house. They had an altercation in the car and GGE repeatedly told the partner to get out of the car, but she refused to do so because she was not wearing any clothing on the lower part of her body at the time. It is then alleged that GGE drove her back to their residence, and he grabbed her by the arm and dragged her out of the car. According to the factsheet GGE reversed over his ex-partner's foot and she suffered bruising and redness to her arm. She did not contact police at that time or seek any medical treatment.
15. The last incident arises out of an argument between GGE and his then partner at their home where it is alleged that GGE pushed his partner down the three front stairs outside their house. She suffered bruising and redness and had photographs of the injuries but did not contact police or seek treatment at that time. Police became involved in May 2018. GGE's partner sought an apprehended domestic violence order. GGE was then charged with the offences of common assault, in relation to the first incident, and common assault occasioning actual bodily harm in relation to the second and third incidents.
16. After hearing evidence from GGE and the complainant, the Magistrate dismissed the charges. The respondent provided a transcript of the hearing. In dismissing the charges, the Magistrate notes that the evidence of the complainant was not confirmed by video evidence, although it was noted that there was evidence GGE was driving erratically. Relevantly, the Magistrate did not accept that the complainant was being threatened with death, as she alleged. The Magistrate states that he has "absolutely no idea what happened" in relation to the last incident and "who was telling the truth". It is noted that the evidence of both witnesses was diametrically opposed, with the complainant saying that GGE had a hammer and, conversely, GGE saying that his ex-partner had the hammer. The complainant said that GGE pushed her down the stairs and GGE said that the complainant fell down the stairs. The Magistrate notes that given some of the complainant's evidence in relation to other incidents was unreliable, he did not accept that the charges were established and stated, …this does not mean that [GGE] did not do something, it just means that I cannot be satisfied beyond reasonable doubt.
17. The Magistrate therefore dismissed the charges and the apprehended violence orders.
18. At the hearing before the Tribunal, when questioned about these matters, GGE again denied the claims made by his ex-partner.
19. A further incident recorded in the police records relates to an incident reported on 29 July 2018, again between GGE and the second complainant. According to the incident report, the ex-partner was showing her dog at a dog show. GGE was also present at the dog show. It is reported that when the ex-partner was showing her dog, GGE asked someone he knew who was filming the show if he could borrow their mobile phone and complete the recording. GGE allegedly began to video record his ex-partner while she was showing her dog from a distance of about 4.5 metres away. The ex-partner believed that there was an enforceable apprehended domestic violence order in place, and she informed the steward who intervened. When confronted, GGE stopped recording but argued that as he was in a public place he was entitled to do this. No charges were laid in respect of this alleged conduct.
20. The respondent provided to the Tribunal a Law Enforcement summary document from NSW Police which provides details of events involving GGE from 1997. The summary document is undated, but we accept that it is current and therefore records all known events involving GGE to date. There are 24 events referred to and, in five of those events, GGE is named as the "victim". It is apparent that a further five of the entries relate to the incident and convictions in 2013. Six of the entries appear to relate to the incidents alleged by the second complainant. There are a number of other incidents recorded in the summary report. In the events where GGE is not named as a "victim", he is otherwise named as a "person named" or a "person of interest". The first incident is recorded to have taken place on 20 November 1997. The incident is recorded as an apprehended violence order and GGE is recorded as the person of interest.
21. The respondent also provided extracts from the computerised operational policing system reports (COPS) for all of these incidents, with the exception of the first incident on 20 November 1997. No records were produced for this event. These COPS reports were produced by NSW Police.
22. There are further incidents recorded on 9 January 2005 and 6 August 2009, where GGE is recorded as the victim. The 2005 incident was work related and the second incident apparently arose from an argument between GGE and the brother of his first ex-partner. The incidents recorded in 2013 relate to various arguments between the between GGE and his first ex-partner, a number of which are the subject of his criminal convictions.
23. There is an incident recorded as taking place on 14 July 2014, described as a domestic violence episode, child/young person at risk. GGE is named as a person of interest. The COPS record notes the person who made the complaint had been a relationship with GGE for a few years and that there were no children as a result of the relationship. The complainant had a 13-year-old son and as a result of arguments between the complainant and GGE and between GGE and the complainant's son she decided to end the relationship. The complaint records that GGE had allegedly refused to hand over the keys to the property. No charges were laid, and it is recorded that the dispute between GGE and the complainant had resolved satisfactorily.
24. There are further incidents recorded in March 2015, described as domestic violence episodes where GGE is recorded as the person named. The COPS record reveals that the complainant was having issues with her ex-partner, GGE. The issues were resolved with the police intervention. There is a further incident recorded that allegedly took place on 1 April 2015, again between GGE and a female partner. There were no charges result of this incident.
25. In 2016 there are two incidents recorded, one on 18 September 2016, where GGE is recorded as the person of interest, and a second on 17 November 2016 where he is recorded as a person named. There were no charges laid as a result of these incidents, but it is apparent that they involved arguments between GGE and a female complainant.
26. After the complaints made in 2013, the most significant matters recorded in the COPS reports are those that were the subject of the allegations made by GGE's former partner in 2018. Relevantly, there is no record of any reports against or involving GGE after July 2018.
27. GGE says that he and his wife are in a stable relationship. They have known each other for approximately 20 years. They commenced a relationship about seven years ago and have been married for two years. He had previously been working in traffic control but has since retired and owns a number of investment properties. He and his wife returned to live in regional NSW six years ago and they have a dog breeding business. His wife is a successful dog breeder. He has been involved in working with dog breeding clubs for many years. He judges dog handling competitions, including the junior handler competitions. He did not understand that he needed a working with children clearance to do this even though he does judge the junior handler competitions from time to time. He also did not realise that after being found guilty of the offences over 10 years ago, this would result in a negative working with children check. He believes, and has been advised by the club, that he did not need a working with children check to undertake his current judging duties.
28. GGE went to a psychologist in 2016 for depression. He does not see the children from his first relationship although he speaks to one of the children. GGE does not believe he poses a risk to children and maintains that the first criminal charges were fabricated by his partner at that time. There are no records of any offences since his last convictions. His previous ex-partner made false allegations and they were dismissed.

Consideration

1. Having regard to the evidence and submissions made in the proceedings, the issues for determination are: 1. Is GGE a disqualified person for the purposes of the WWC Act? 2. If so, should an enabling order be made under s 28 of the WWC Act?

Is GGE a disqualified person?

1. As noted, GGE was convicted on 25 July 2013 of the offence of indecent assault pursuant to s 61L of the Crimes Act. This section was repealed in 2018.
2. Clause 2 of Schedule 2 provides that certain offences are "excluded offences" if the offence listed in clause 1 was an offence at the time of its commission but the conduct has ceased to be an offence in New South Wales. The exclusion focuses on the conduct which constituted the original offence and not on the offence. The repeal of s 61L therefore does not, of itself, mean that the previous commission of an offence under this section no longer engages the provisions dealing with automatic disqualification. It is necessary to consider whether the conduct constituted by the original offence of "indecent assault" continues to be an offence in New South Wales.
3. The parties were requested to make submissions in relation to this issue.
4. The respondent provided submissions on 31 October 2024. GGE did not respond.
5. The respondent submits that while the offence under s 61L of the Crimes Act was repealed on 1 December 2018, the conduct described in the section has not ceased to be an offence in New South Wales and, accordingly, GGE remains a disqualified qualified person for the purposes of s 18 of the WWC Act.
6. The respondent submits that, firstly, while s 61L has been repealed the section continues to apply to offences committed or alleged to have been committed before the repeal pursuant to cl 79 of Schedule 11 to the Crimes Act. As a result, despite the repeal of the section, a person who has contravened section 61L at the time it was in force remains exposed to conviction under that section. Secondly, the conduct which gave rise to the conviction under s 61L has not ceased to be an offence and if the same conduct was engaged in today, it would be an offence under s 61KC of the Crimes Act.
7. At the time GGE was convicted of this offence, the conduct constituting the offence was as follows: Indecent assault Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for five years.
8. The conduct which constituted the offence under s 61L is an "assault" with an "act of indecency". Neither of these terms were defined in the Crimes Act at the relevant time and in supplementary submissions, the respondent referred to case law explaining the elements of these offences. An "assault' is an intentional or reckless act that threatens another person with immediate an unlawful violence (R v Patten (1998) 88 A Crim R 365) whether or not actual physical harm is inflicted (Darby v Director of Public Prosecutions (2004) 61 NSWLR 558). An act of indecency is an act which right minded persons would consider to be contrary to community standards of decency committed on or in the presence of the victim of the assault at the time of or immediately before or after the assault (Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241).
9. As a result of the 2018 amendments to the Crimes Act, certain offences under the Crimes Act were replaced with new offences focussing on child sexual abuse. As is clear from the Explanatory Notes for the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, the objects of the Bill were to enhance protections for children, create new offences in relation to risks and child abuse and, relevant to the issues in this case: (b) to replace offences of indecent assault and act of indecency with offences of sexual touching and sexual act and to create a new offence of sexually touching where the alleged victim is a young person under the special care of the accused person.
10. According to the Explanatory Note, the offence of "indecent assault" was replaced with the offence of "sexual touching" under s 61KC and new offences were created for sexual touching of a child under 10 years old (s66DA) and sexual touching of a child between 10 and 16 years (s 66DB).
11. The respondent submits, and we accept, that the disqualifying offence under s 61L now constitutes an offence under s 61 KC and that the element of "an act of indecency" is now captured by the description of "sexually touches". The respondent contends that clauses 77 and 78 of Schedule 11 to the Crimes Act demonstrate a plain intention for the statutory language of "indecency" to pivot to "sexual touching" and "sexual act". The respondent notes that the Crimes Act was amended to reflect the updated language and the rationale behind this was described by then Attorney General Mark Speakman in the second reading speech of the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, 6 June 2018 at Hansard: Importantly, these amendments will also address the fact that some offences use the outdated terminology of indecency. For the purposes of offences against both adults and children, the conduct currently covered by the offences of indecent assault and acts of indecency will be covered by the offences of sexual touching and sexual act. This more modern and more easily understood terminology is defined in a new subdivision 1 in a way that reflects the core of the common law meaning of indecency. Sexual touching will cover contact offences that involve some form of physical contact with the victim... The penalties for the sexual touching offences are the same as for the existing indecent assault offences.
12. Section 61KC of the Crimes Act is in the following terms: 61KC Sexual touching Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally - (a) sexually touches the complainant, or (b) incites the complainant to sexually touch the accused person, or (c) incites a third person to sexually touch the complainant, or (d) incites the complainant to sexually touch a third person, is guilty of an offence. Maximum penalty - Imprisonment for 5 years.
13. The conduct which constitutes this offence includes intentionally sexually touching the complainant without their consent. The expression "sexual touching" is defined in s 61HB of the Crimes Act in to mean "a person touching another person with any part of the body or anything else in circumstances where a reasonable person would consider the touching to be sexual". Matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include whether the area of the body touched or doing the touching is the person's genital, anal or breast area and whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification.
14. In our view, while there are some differences in the wording between the two offences, we are satisfied that the conduct that led to GGE's conviction for indecent assault is conduct that would be an offence under s 61KC. Relevantly, touching a person on their breast without their consent and making suggestive comments is conduct that would be an offence under s 61KC.
15. Accordingly, we are of the view that the fact that s 61L has been repealed does not exclude GGE's conviction for the purpose of assessing whether he is a disqualified person under s 18(1) of the WWC Act. We therefore find GGE is a disqualified person.

Submissions

1. In his application for review, GGE submitted that the incident for which he was convicted was 11 years ago and was fabricated by his ex-partner to assist her in obtaining custody of their children. He did not appeal that decision at the time as he was unemployed, was the carer of three children and did not have the funds to appeal. He has been a new relationship for over six years, and they have a child who is nearly five years old. He and his partner wish to become foster parents to share their love and attention with another child as they are now unable to have more children. GGE submits that enabling order should be made in these circumstances.
2. The respondent submits that in an application for an enabling order by a disqualified person, the Tribunal can only make the enabling order if positively satisfied that the applicant does not pose a risk to the safety of children. In making this determination, the Tribunal must have regard to the mandatory considerations set out in s 30(1). If satisfied that GGE does not pose a risk, the Tribunal must further be satisfied about the supplementary tests, namely the reasonable person test, which is an objective test, and the public interest test, which requires the Tribunal, before making an order enabling the applicant to work with children, to find that it is in the public interest to make such an order.
3. The respondent further submits that there is no evidence filed by GGE to refute the evidence which formed the basis for the charges and convictions and there is evidence from which the Tribunal may infer that the children would have been exposed to psychological harm as a result of the altercation on the night in question. While GGE disputes the evidence of his ex-partner, even on his version of events, cuddling his ex-partner without her consent would be sufficient to expose him to charges and a conviction. GGE has not demonstrated insight in relation to his offending and there is a risk he may reoffend. There is evidence that GGE has wrongfully been involved in judging junior dog handling competitions in circumstances where he does not have a working with children clearance, which would be required given the broad definition in sections 6 and 7 of the WWC Act. This demonstrates GGE's lack of insight and understanding about the importance of the working with children check clearance regime.
4. As such, the Tribunal cannot be satisfied on the evidence that GGE does not pose a risk to the safety of children. If the presumption that GGE poses a risk has not been rebutted, there is no need to consider the supplementary tests.

Is the Tribunal satisfied that GGE does not pose a risk?

1. In determining this issue, the Tribunal must have regard to the factors in s 30(1). We set out our consideration of those matters below.

Seriousness of the offences with respect to which the person is a disqualified person (s 30(1)(a))

1. The offence in respect of which GGE is assessed as a disqualified person is the offence assault with an act of indecency, which is equivalent to sexual touching. The offence relates to a domestic violence related offence involving GGE's former partner. It is not an offence relating to a child but nonetheless is serious and is an offence that was punishable to a term of imprisonment for up to five years. In this case, GGE was sentence to good behaviour bond of two years and the apprehended violence order was also in place for two years. While GGE was not sentence to a term of imprisonment, this is still a significant sentence.

Period of time since those offences occurred and the conduct of the person since they occurred (s 30(1)(b))

1. GGE submits, and we accept, that these offences were over 11 years ago, and he has not been convicted of any other criminal conduct since this time. None of the conduct relates to offences against children. He submits this is a matter to which we should give significant weight in assessing whether he poses a risk.
2. The respondents admits that the criminal history and allegations previously made in respect of GGE raises concerns such that the Tribunal could not be satisfied that he does not pose a risk to the safety of children. While GGE is not convicted of committing offences against children, his conduct had the potential to harm his children. He does not acknowledge this and, given GGE's history, if GGE again faces pressure in a domestic context, it is possible he may again react aggressively to his partner, and this has the potential to risk the safety of any children who may be present.
3. There is force in this submission. Examination of the records reveal that numerous allegations have been made against GGE in the context of domestic violence in the period 1997 to 2018. One allegation involved the child of a former partner. GGE was not charged in respect of these allegations, nor was he convicted of the offences alleged in respect of the conduct in 2018. However, it is clear from the transcript of the hearing in November 2018 that the Magistrate had concerns in relation to the conduct alleged but was not satisfied at the criminal standard. GGE has not been charged with or convicted of any criminal offences since 2018 and this tends to support his contention that he is now in a stable relationship and is no longer a risk. Against this, GGE's evidence about these incidents is that they were all fabricated and false. He shows little insight about the conduct that gave rise to the charges and seeks to minimise his role, which is somewhat inconsistent with the criminal records which show that three of GGE's former partners have made multiple allegations of domestic violence against him.
4. Notably, GGE does not point to any counselling that he is undertaken, nor does he accept or acknowledge that there may have been fault on his part and that he has taken steps to change his behaviour. On balance, we are not satisfied that the lengthy period that has expired since GGE's last offending of itself supports the contention that he does not pose a risk to the safety of children.

The age of GGE at the time the offences occurred (ss 30(1)(c) & (g))

1. GGE was about 36 years old at the time the disqualifying offences occurred. He is now 47 years old. This is not a case where GGE was young and immature such that it could be now argued he poses less or no risk at the time of assessment.

The age, age difference and any evidence about the vulnerability of the victim (ss 30(1)(d)-(f))

1. The victim was GGE's former partner and the mother of his four children. GGE's former partner and GGE were similar ages and had been together for about 14 years. The children were in the house at the time of the offending and one of the children was only about 6 years old. There is no evidence about whether his former partner was vulnerable but the evidence about the vulnerability of the children, who were upset by the incident, tends to exacerbate the seriousness of the conduct in the context of the safety of children. While GGE's former partner was not a child at the time of the offence, their children were present during the altercation and were themselves victims having observed the incident. There is no dispute that GGE was aware of their presence.

The seriousness of GGE's criminal history and the conduct since the matters occurred (s 30(1)(h))

1. We have considered this in the context of ss 30(1)(a) and (b).

Likely impact of repetition and impact on children of such repetition (s 30(1)(i))

1. It is difficult to assess the likelihood of repetition in the absence of a detailed risk assessment report. However, we have had regard to the fact that there have been no allegations made to police or convictions recorded against GGE since 2018. It may also be relevant that GGE is older and appears to be in a stable relationship. Despite this, the likelihood of something occurring is necessarily predictive and we cannot discount it, particularly given GGE's lack of insight and apparent lack of remorse for any impact the offence may have had on his children. Any similar offence, in the domestic violence context, could have a significant impact on children.

Any order that is enforce in relation to GGE (s 30(1)(i1))

1. There is no current order in place and, as such, this is a neutral factor in assessing risk.

Any information given by GGE in relation to the application (s 30(1)(j))

1. As already noted, GGE has provided limited evidence or information in support of his contention that he should be given an enabling order. We have nonetheless taken into account his oral evidence and submissions.

Information obtained in relation to s 36A (s 30(1)(j1))

1. There is no evidence of information obtained by the respondent pursuant to the information sharing provisions of the WWC Act.

Any other matters the respondent considers necessary (s 30(1)(k))

1. This is a general catch all consideration, which is already been encompass by the evidence provided by the respondent which is contended to be relevant to a number of the other considerations.

Conclusion

1. The issue for determination is it that before the Tribunal can make an enabling order, we must be satisfied that GGE does not pose a risk to the safety of children. The risk must be real and appreciable and not remote or speculative. The determination of this matter is a question of fact, and the assessment must be made at the time of our decision. Evidence of the conduct of the applicant in the past may be relevant to the question of whether an applicant does not pose a real and appreciable risk to the safety of children. Examining past conduct and the disqualifying offence, in the context of the mandatory considerations set out in s 30(1), provides the Tribunal with guidance in relation to its approach to fact finding on what is a predictive and forward-looking assessment. The WWC Act establishes a scheme which is protective in nature. The protection of children is a paramount consideration, and this is self-evident in the legislative regime for the granting of approval through an enabling order.
2. Section 28(7) provides that there is a rebuttable presumption that an applicant poses a risk to the safety of children when the applicant is subject to a disqualifying offence. This will ordinarily require more than a denial of the seriousness of previous convictions and charges or mere assertions that the applicant does not pose a risk. The starting position is that if an applicant has been convicted of a disqualifying offence, the Tribunal must be satisfied that he or she does not pose a risk before it can consider making an enabling order. As observed by the Court of Appeal in Tilley v Children's Guardian [2017] NSWCA 174 at [30], s 28(7) does not involve a reversal of the test requiring the Tribunal to be affirmatively satisfied of risk, noting that the reasons of the Tribunal that there was a real and appreciable risk "that has not been disproven" was not in error because: It was, rather, a reflection of the strategic situation, namely that there was significant material supporting the view that the applicant posed a risk to children, to which there had been no adequate response.
3. In other words, it is the task of the Tribunal, having regard to the available material, to determine whether an applicant seeking an enabling order does not pose a risk to the safety of children. At a practical level, if the respondent provides evidence relating to the disqualifying offence and other material relevant to the mandatory considerations in s 30(1) and that material does not rebut the presumption, it falls to the applicant to answer those matters and to provide an "adequate response" as a basis for "rejecting the affirmative conclusion" (at [31]).
4. In the present case, GGE denies the seriousness of the previous offences and he does not show any apparent remorse or acceptance of responsibility for those offences. The incontrovertible evidence is that GGE was convicted of common assault and assault with an act of indecency in 2013. The offences were committed in the presence of children. Those convictions have not been quashed, he did not appeal and he does not point to any action that he has taken to address these issues. However, we are less persuaded by the submission that GGE wilfully breached the working with children prohibition by being a judge in the junior dog handling competitions. We accept his evidence that he was surprised about this and that his club advised it was unnecessary. Relevantly, the question of whether this activity falls within section 6 and 7 is not free from doubt and much depends on the nature and scope of the activity.
5. There is also material before the Tribunal that GGE has been involved in multiple incidents of domestic violence with former partners. He has not been charged or convicted in respect of these allegations and, in one case, the charges were dismissed after a hearing. GGE asserts that these latter allegations were "false". The dismissal of the charges does not establish that the allegations were false but rather that they were not proven to the criminal standard. The fact that other altercations with former partners did not result in charges or convictions does not discount the possibility that the allegations made by GGE's former partners in relation to domestic violence incidents, one which allegedly involved a child, occurred. The majority of these allegations involve adult partners not children, although domestic violence, in the presence of children, may result in psychological harm and therefore risk to the safety of children, as demonstrated by the conduct which was the subject of the 2013 charges and convictions.
6. Having regard to the material before the Tribunal considered in its totality, we are not satisfied that the presumption of risk has been displaced. We are therefore not satisfied that GGE does not pose a risk to the safety of children.

Supplementary tests

1. Given our findings, it is unnecessary for us to consider the supplementary tests.

Conclusion

1. Because we cannot be affirmatively satisfied GGE does not pose a risk to the safety of children, we must refuse his request for an enabling order.

Orders 1. The time for making the application is extended to 1 March 2024 pursuant to section 41 of the Civil and Administrative Tribunal Act 2013. 2. The application for an enabling order under s 28 of the Child Protection Act (Working with Children) Act 2012 (NSW) is refused.

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

Amendments 07 November 2024 - Paragraph 71 - word amended to read 'Sexual' 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 November 2024