GGM v Children's Guardian

NCAT Administrative and Equal Opportunity|2024-09-30|Before: Emeritus Prof P, Foreman AM

Introduction

The applicant seeks an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (the Act). The respondent refused the applicant a working with children check clearance (WWCCC) because he is a disqualified person under the Act.
The applicant seeks a finding from the Tribunal that he does not pose a risk to the safety of children. It is presumed that the applicant poses a risk to the safety of children under the Act because he pleaded guilty to the disqualifying offence of film person in private act without consent for which he was sentenced in the Local Court of NSW on 24 March 2017.
The applicant applied for a WWCCC on 29 February 2024. On 5 March 2024 the respondent notified the applicant that it had refused to grant him a WWCCC because he is a disqualified person under the Act.
The applicant filed the application with the Tribunal for an enabling order on 11 March 2024.
The respondent cannot grant a WWCCC to a disqualified person under the Act. The respondent supports the application for an enabling order.
If the Tribunal makes the enabling order, it may order the respondent to grant the applicant a WWCCC under the Act.
Due to the sensitive nature of these proceedings, an order was made on 28 March 2024 under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. To give effect to this order, the pseudonym 'GGM' has been used for the applicant's name and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed.

Material before the Tribunal

The applicant provided a statement, a report from Mr Neil Ballardie, consultant psychologist, and written submissions to the respondent and the Tribunal.
The respondent provided two bundles of documents and written submissions to the applicant and the Tribunal.

The hearing

No witnesses were required for cross examination by either party.
Both parties made oral submissions at the hearing.

The applicant's case

To rebut the presumption of risk the applicant relies upon the factual circumstances of the index offence (that did not involve children), mitigating factors including his remorsefulness, taking responsibility, and engaging in therapy to improve his mental well-being (supported by a psychological report that is referred to further below), and the absence of criminal offences before or since the index offence. The applicant stated that he would never harm or commit any crimes against children. The applicant expressed his deep respect and appreciation for the work of the respondent and the vital role the respondent plays in protecting the safety of children. The applicant stated that he fully understands and supports the importance of stringent measures to ensure that only suitable individuals are granted clearances to work with children. The applicant assured the Tribunal that he fully appreciates the responsibilities associated with working with children and will uphold the highest standards of conduct if granted the opportunity for a WWCCC.

The respondent's case

The respondent submitted that the applicant has rebutted the presumption that he poses a risk to the safety of children. The respondent further submitted that a reasonable person would permit their child to have direct, unsupervised contact with the applicant in the course of any child-related work and that it is in the public interest to grant the applicant a WWCCC.

Legislation

The Act establishes a regime of checks and clearances for persons working with children in NSW. The objects of the Act are as follows: 3 Object of Act The object of this Act is to protect children - (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances.
The paramount consideration in the operation of the Act is found in s 4: 4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.
The following definitions from s 5 are instructive in this case: 5 Definitions (1) In this Act - … adult means a person who is 18 years of age or older. … child-related work - see sections 6 and 7. children means persons under the age of 18 years. … conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction. … disqualified person - see section 18(1). … enabling order - see section 28. … working with children check clearance or clearance means an authorisation that is in force under this Act to engage in child-related work.
Risk to the safety of children is defined as follows: 5B Meaning of "risk to the safety of children" A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.
By the operation of s 6 (child-related work), s 8 (restrictions on engaging in child-related work) and s 9 (employers must require clearance or current application) it is unlawful for a person to engage in child-related work without a WWCCC (or a current application for a clearance) and for an employer to employ a person in child-related work without the same.
Section 12 provides for two classes of clearances: volunteer - for a volunteer to engage in unpaid child-related work (12(1)(a)), and non-volunteer - for a worker to engage in paid and unpaid child-related work (12(1)(b)).
Section 13 allows a person to apply to the Children's Guardian for a WWCCC.
Various exemptions to the need for a WWCCC are provided in the Act and the Child Protection (Working with Children) Regulation 2013.
Section 18 relevantly provides that disqualified persons are not able to be granted a WWCCC by the Children's Guardian 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,
Section 28 makes provision for enabling orders under the Act as follows: 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.
Section 30 provides guidance to the Tribunal when determining an application for an enabling order: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part - (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that - (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.
Schedule 2 specifies disqualifying offences for disqualified persons under the Act. In this case the relevant offence is found in Schedule 2, cl 1(1)(p): Schedule 2 Disqualifying offences 1 Specified offences (1) The following offences are specified - (p) an offence under section … 91K … of the Crimes Act 1900,
The disqualifying offence is a criminal offence under s 91K(1) Filming a person engaged in private act of the Crimes Act 1900 as follows. A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

Background

The applicant is a 46-year-old man living in Sydney. He is married and there are three children of the marriage under 10 years of age. The applicant applied for a clearance under the Act for the purposes of coaching his child's soccer team. The applicant stated that denying him a WWCCC has affected his ability to participate in his children's activities and negatively impacted his prospects for community involvement and future employment opportunities.

The disqualifying offence

The index offence occurred on 16 September 2016. The applicant attended a brothel where he paid for the services of a sex worker for 30 minutes of "full service". After entering the service room, the applicant positioned his mobile phone and backpack so that the camera of the phone had a view of the room and commenced recording.
After about 10 minutes, the victim observed the applicant's mobile phone to be illuminated. The victim stopped and pointed out a notice on a sign displayed in the room that photos or videos were not permitted. The applicant denied filming. The victim contacted a manager who entered the room and confiscated the applicant's phone.
Police attended and cautioned the applicant, who said, "I'm sorry, it was a boyhood fantasy that I was playing out". The applicant voluntarily provided the passcode for his mobile phone to police and permitted them to view the recording. The applicant indicated to police that he had consumed five full-strength beers earlier that evening.
The applicant was arrested and participated in an interview, during which he admitted to recording the victim during a sex act, without her consent. The applicant was charged with filming a person engaged in a private act without consent under s 91K(1) of the Crimes Act 1900. The applicant was also charged with common assault, which was later withdrawn.
The applicant pleaded guilty to the index offence and on 24 March 2017 was discharged of the offence by order of the Local Court under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction. The applicant was required to enter a bond under s 10(1)(b) for a period of 18 months with conditions to be of good behaviour and to commit no further offences. The remarks of the Local Court Magistrate on sentencing indicated that the Court at that time was "quite convinced that the offending was a one-off".
At the time of the offence the applicant was 38 years old, and the victim was 31 years old.
Under s 18(1) of the Act, the respondent must not grant a WWCCC to disqualified persons. Through the working of s 18(1)(a) and Schedule 2, cl 1(1)(p) of the Act, this includes a person who has pleaded guilty to an offence committed as an adult under s 91K of the Crimes Act 1900. This is because a "conviction" includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction: s 5(1) of the Act.

An enabling order under s 28 of the Act

Due to the disqualifying offence, it is presumed that the applicant poses a risk to the safety children unless proven otherwise: see s 28(7) of the Act.
Under s 30(1A) of the Act an enabling order may not be made 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.
To determine whether an enabling order should be made under s 28(1) of the Act, the Tribunal therefore takes a two-step approach. First, the Tribunal must assess whether it is satisfied that the applicant does not pose a risk to the safety of children. Second, if the Tribunal is satisfied that the applicant does not pose a risk to the safety of children, it must then assess whether it is satisfied that the "reasonable person" test and the "public interest" test in the first and second limbs under s 30(1A) of the Act have been met: FFB v Children's Guardian [2022] NSWCATAD 71 at [21].
Both the "reasonable person" test and the "public interest" test must be satisfied before the Tribunal makes an order enabling a person to work with children: Children's Guardian v CVE [2017] NSWSC 1342 at [23], [26].

Whether the Tribunal is satisfied that the applicant does not pose a risk to the safety of children

"Risk to the safety of children" is defined in s 5B of the Act.
The burden is on the applicant to displace the statutory presumption in s 28(7) of the Act.
As the Administrative Decisions Tribunal noted in AZY v Children's Guardian [2013] NSWADT 301 at [68]-[69]: A literal interpretation of ss.28(7), requiring the Applicant to prove that he does not pose a risk to the safety of children, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children. In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering ss9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "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". Young CJ in Eq held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the 'risk' with the words that follow, namely, 'to the safety of children'.
The respondent submitted that the Tribunal should find that the applicant has rebutted the statutory presumption because: a. The facts of the index offence, including the Applicant's explanation for them and the psychological evidence in relation to them, reflected an outof-character and isolated incident during a period of emotional difficulty and which, properly assessed, disclosed minimal risk to children at the time of the offence; and b. The Applicant's evidence, including expert psychological evidence, demonstrate that the Applicant has sought and benefited from psychological treatment since the offence.
The Tribunal notes the circumstances of the index offence: the conduct occurred over 8 years ago, it was an isolated event, the victim was aged 31, it occurred during the otherwise lawful provision of sexual services, it was in a closed setting and did not involve or pose a risk to children.

Psychologist's report

The Tribunal considered the report of Mr Neil Ballardie, consultant psychologist, dated 20 March 2017, which was prepared for and provided to the Court on sentencing for the index offence. It is clear from the report that: 1. Mr Ballardie had been the applicant's treating psychologist since 25 October 2016. 2. Mr Ballardie was familiar with the circumstances of the offence. 3. In Mr Ballardie's assessment at that time: 1. the applicant had long standing major depression, a generalized anxiety disorder, a poor self concept, negative ideations and had developed a catastrophizing cognitive style. 2. The symptoms of the applicant's mental conditions were present at a high level at the time of the index offence. 3. Other causal factors contributing to the applicant offending included: 1. The lack of intimacy he was experiencing with his wife while she was pregnant, 2. His increasing use of pornography, 3. The negative impact from increased pressures at work. 1. These factors were impacting on the applicant's functioning, behaviour and choices, and contributed to his offending. 2. The applicant's risk of reoffending should be considered very low given: 1. His high level of engagement during assessment and therapy, good level of insight and motivation to make positive changes in his life, 2. the amelioration of his symptoms post treatment including improvements in his mood, anxiety, self concept and cognitions, the identification of a possible causal connection between his mental conditions, an exacerbation of his symptoms, their impact on his behaviours and judgement, and offending, 3. his consistent and responsible level of employment, 4. his good moral compass, high level of social awareness and normally responsible attitude, 5. his ability to refrain from alcohol since the index offence and expressed commitment to refrain from this in the future, 6. his positive engagement with a Positive Lifestyle Program and his engagement in and commitment to ongoing psychological counselling, 7. the absence of prior offending and his genuine remorse and regret at having offended.
The Tribunal accepts the assessment of Mr Neil Ballardie, and specifically that the applicant's risk of reoffending is very low. This assessment was provided only 6 months after the index offence and there is no evidence before the Tribunal to suggest that the level of risk has changed since that time. The Tribunal is reassured by the applicant's absence of offending before or since the index offence.

The considerations in s 30(1) of the Act

The Tribunal must consider the matters set out in s 30(1) of the Act in determining whether the applicant poses a risk to the safety of children.

Section 30(1)(a), (b) and (h) - The seriousness of the matters which caused the refusal, the seriousness of the applicant's criminal history, the period of time which has passed and the conduct of the person since they occurred

The disqualifying offence carries a maximum penalty of 100 penalty units or imprisonment for 2 years, or both. However, noting the matters at [43] and having regard to the objects and purpose of the Act, the applicant's disqualifying offence is at the lower end of the range of seriousness.
The disqualifying offence involved the applicant filming himself engaging in a sexual act with the victim. While the sexual act was by consent, the recording of it was not. The victim was an adult sex worker. Although the disqualifying offence involved a breach of trust and the covert recording of a sex worker, the circumstances in which the offence occurred and the offence itself did not involve children, nor disclose any obvious risk to the safety of children.
A period of 8 years has passed since the disqualifying offence.
Apart from the disqualifying offence the applicant has no criminal history and there are no other allegations of criminal activity or misconduct.

Section 30(c) and (g) - The applicant's age now and at the time the matters occurred

The applicant is 46 years of age.
The applicant was 38 years old at the time of the disqualifying offence.

Section 30(1)(d), (e) and (f) - The age and vulnerability of the victim, and the age difference and relationship between the applicant and the victim, and whether the applicant knew the victim was a child

The victim was aged 31 years at the time of the disqualifying offence.
The victim was vulnerable because she was a sex worker engaged by the applicant. However, there were arrangements in place in the sex-onpremises environment for the victim to seek assistance for her safety which she utilised in this case.
The victim was 7 years younger than the applicant at the time of the offence.
There was no relationship between the applicant and the victim other than the applicant engaging the victim for sexual services in a sex-onpremises environment.
The victim was not a child, and the applicant knew the victim was not a child.

Section 30(1)(i) - The likelihood of repetition of the relevant conduct by the applicant and the impact on children of any repetition

Noting the matters at [44]-[45], the Tribunal accepts that it is highly unlikely that the applicant would repeat the conduct giving rise to the disqualifying offence or any similar conduct in future as the circumstances surrounding the offending have been largely resolved. Added to this are the applicant's cooperation with and immediate admissions to the police in relation to the offence, and the plea of guilty at the first available opportunity. The impact on children of a repetition of the conduct would likely be minor as no children would be involved.
If the disqualifying offence was repeated and directed towards a child, the impact on such a child would be considerable. There is no evidence to suggest that the applicant might repeat the offence against a child.

Section 30(1)(i1) - Any order of a court or tribunal that is in force in relation to the person

The applicant is not subject to any order of a court or tribunal.

Section 30(1)(j) - Any information given by the applicant in, or in relation to, the application

This information, relevantly considered here, is referred to earlier in these reasons, including at [12], [27], [43]-[45].

Section 30(1)(j1) - Any relevant information in relation to the person that was obtained in accordance with s 36A

No information was obtained in accordance with s 36A of the Act.

Section 30(1)(k) - Any other matter that the Children's Guardian considers necessary

The respondent informed the Tribunal that it supported the application.
The matters the respondent considers necessary are captured by the other s 30(1) factors.

Conclusion as to risk to the safety of children

The Tribunal is satisfied that the applicant has rebutted the presumption in s 28(7) of the Act and does not pose a real and appreciable risk to the safety of children. The Tribunal has considered the following in reaching this conclusion: 1. that the applicant's disqualifying offence is at the lower end of the range of seriousness, 2. the circumstances in which the offence occurred and the offence itself did not involve children, nor disclose any obvious risk to the safety of children, 3. the evidence from consultant psychologist Mr Ballardie and the applicant that the circumstances surrounding the offending have been largely resolved, which provides confidence that it is highly unlikely that the applicant would repeat the conduct giving rise to the disqualifying offence, or any similar conduct, in future, 4. the applicant's cooperation with and immediate admissions to the police in relation to the offence and the plea of guilty at the first available opportunity, 5. the applicant's lack of any other criminal history.

Reasonable person test: s 30(1A)(a)

As the Tribunal stated in DAI v Children's Guardian [2017] NSWCATAD 308 at [91]: In order to properly consider this test, a "reasonable person" would need to know about the disqualifying offence, the circumstances surrounding the offence, the applicant's entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him.
In assessing whether a reasonable person would allow their child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, the Tribunal has regard to: 1. the circumstances of the disqualifying offence (that did not involve children), 2. the passage of 8 years since the offence, 3. the absence of other criminal behaviour or misconduct, 4. that there is no evidence of the applicant engaging in any concerning behaviour towards children, 5. that the event was an isolated incident otherwise out of character for the applicant, 6. the therapy the applicant has benefited from to address the underlying risk factors, and 7. the assessment of consultant psychologist Mr Neil Ballardie that the applicant's risk of reoffending is very low.
The Tribunal is satisfied that the first limb to s 30(1A) of the Act has been met.

Public interest test: s 30(1A)(b)

In relation to the public interest test in s 30(1A)(b) of the Act, it was stated by the Tribunal in CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 at [75]: The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.
In Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term "public interest" in the context of the equivalent provision in the Victorian Act. The Victorian Court of Appeal said: [24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]: The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question. [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body'. [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.
In considering the public interest test the Tribunal has regard to the subject matter, scope, and purpose of the Act, and specifically the paramount consideration in the operation of the Act in s 4. The Tribunal is of the view that the applicant does not pose a real and appreciable risk to the safety of children (see [65]). In the absence of any risk to the safety of children, there are no clear public interest considerations which would suggest that it is not in the public interest for the applicant to be granted a WWCCC.
The applicant submits that he seeks a WWCCC to coach his child's soccer team. There is a clear public interest in children participating in sporting activities and in allowing their parent or carer to volunteer assistance to support those sporting activities where possible. The Tribunal is satisfied that it is in the public interest to grant the applicant a WWCCC.
The Tribunal is satisfied that the second limb to s 30(1A) of the Act has been met.

Conclusion

It follows that the Tribunal is of the view that it is appropriate to make an enabling order declaring that the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence, and to order the Children's Guardian to grant the applicant a WWCCC.

Order 1. It is declared the applicant is not a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of filming a person in a private act without consent under s 91K(1) of the Crimes Act 1900 (NSW) for which the applicant pleaded guilty and was discharged under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) by the Local Court of NSW on 24 March 2017. 2. The Children's Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW) without delay.

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: 09 October 2024

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