GTA v Children’s Guardian

Texts Cited: None

Category: Principal judgment

Parties: GTA (Applicant)
Children’s Guardian (Respondent)

Representation: Applicant (Self represented)
Crown Solicitor (Respondent)

File Number(s): 2024/00423589

Publication restriction: Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), with the exception of expert witnesses and officers of government agencies, the publication or broadcast (disclosure) of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited.
Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. By an amended application made to the NSW Civil and Administrative Tribunal (Tribunal) on 7 March 2025 (Review Application), the Applicant seeks administrative review pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (WWC Act) of the decision (Decision) made by the Children’s Guardian (Respondent) on 1 November 2024 to refuse to grant him a Working With Children Check Clearance (WWCC Clearance).

2. Given the nature of the proceedings, an order was made by the Tribunal under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) that the publication or broadcast of the name of any person mentioned in the proceedings or referred to in the material lodged in the proceedings is prohibited. The Applicant is referred to by the pseudonym “GTA”.

3. For the reasons that follow, based on a consideration of the evidence before the Tribunal, and having had regard to the matters in s 30(1) of the WWC Act, we are satisfied that the Applicant is not a real and appreciable risk to the safety and wellbeing of children and young persons. We are also satisfied on the available evidence and pursuant to s 30(1A) of the WWC Act, that a reasonable person informed of all the relevant facts would allow their child to have unsupervised contact with the Applicant while he is engaged in child-related work, and that it is in the public interest to grant him a WWCC Clearance.

Background

Application for WWCC Clearance and Risk Assessment

4. On 10 May 2023, the Applicant applied for a WWCC Clearance, nominating education as the child-related sector.

5. On 1 June 2023, the Applicant was sent a Notice of Risk Assessment which advised him that a risk assessment (Risk Assessment) was required under section 15(1) of the WWC Act.

6. On 2 August 2024, the Applicant was notified that the Respondent proposed to refuse his WWCC application.

7. Following consideration of evidence submitted on behalf of the Applicant by his solicitor on 1 October 2024, the Respondent made the Decision to refuse the Applicant’s application for a WWCC Clearance. Having regard to the Applicant’s alleged behaviour, the subject of criminal charges which were dismissed, involving allegations of sexual abuse of three children, and the factors set out in s 15(4) and s 15(4A) of the WWC Act, the Respondent was satisfied that the Applicant poses a risk to the safety of children.

Statutory scheme and 2025 amendments

8. The WWC Act establishes a statutory scheme the object of which is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have a WWCC Clearance: s 3, WWC Act. Section 4 of the WWC Act provides: “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”.

9. The WWC Act was amended by the Child Protection (Working with Children) and Other Legislation Amendment Act 2025 (NSW) (Amendment Act) which came into effect from 23 September 2025 (the date of assent). A key aspect of the changes brought about by the Amendment Act is the removal of external review of decisions made by the Respondent in relation to WWCC Clearances. A person who has been refused a WWCC Clearance no longer has the right to seek external review of the refusal by the Tribunal.

10. As noted above, the Review Application was made on 7 March 2025. This was before the amending legislation came into effect on 23 September 2025. The Amendment Act includes transitional and savings provisions that apply to applications that had been made but not determined at the date of effect: Schedule 3, WWC Act.

11. Relevantly, cl 25 of Schedule 3 provides:

An amendment made to a provision of Part 4 of this Act by the amending Act does not apply to or in respect of a review (or an appeal arising from a review) if the review commenced before that amendment and that provision, as in force immediately before that amendment, continues to apply to and in respect of any such review or appeal.

12. Clause 27 applies to applications for review that have been made to the Tribunal but not finally determined before the commencement date. If the relevant application was commenced before the introduction date, the application must be determined by the Tribunal as if the Amendment Act had not commenced: cl 27(2).

13. Clause 27(6) contains a number of relevant definitions. The “introduction date” is defined as meaning the date on which the Bill for the Amendment Act was first introduced into Parliament: see cl 27(6). That date was 5 August 2025. The “commencement date” means the date on which the clause commenced operation. Section 2 of the Amendment Act provides that the Act commenced on 1 December 2025 for the provisions relating to mutual recognition of negative notice but otherwise commences on 23 September 2025. It follows that applications lodged with the Tribunal under the WWC Act before 5 August 2025 will continue to be dealt with by reference to the legislation as it operated prior to the Amendment Act.

14. The Review Application was lodged before 5 August 2025 and was not finally determined before 23 September 2025. As such, in accordance with the transitional provisions, it is to be determined by the Tribunal with reference to the pre-Amendment Act legal framework.

Pre-Amendment Act legal framework

15. Section 5B of the WWC Act provides that a reference to a “risk to the safety of children” is a reference to a real and appreciable risk to the safety of children.

16. By s 6(1) of the WWC Act, a person is engaged in “child-related work” if they are engaged in work that is specified in s 6(2) and which involves “direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work”. A person is also engaged in “child-related work” if they are in a child-related role: WWC Act, s 6(3). Direct contact with children is defined in s 6(4) as meaning either physical contact, or face to face contact. Section 7 provides for “additional child-related work”.

17. Section 8 provides that a person must not engage in child-related work unless the person holds a WWCC Clearance of a class applicable to the work. By s 12, there are two classes of WWCC Clearances: 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.

18. Section 13 provides that a person may apply to the Respondent for a WWCC Clearance. The application must specify the class of clearance applied for. A person who is refused a WWCC Clearance is not generally entitled to make a further application for a clearance until five years after the date of the notice of the refusal: s 13A, WWC Act.

19. Division 3 of Part 3 of the Act provides for risk assessments which the Respondent is entitled to undertake in a wide range of circumstances. 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 a number of “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.

20. Section 15(4) of the WWC Act sets out a range of matters that can be considered in a risk assessment. These include the seriousness of the matters that caused the assessment; the age of the people involved; the time the matter occurred; the seriousness of the person’s criminal history and their conduct since the matters occurred and the likelihood of repetition. By s 15(4)(k), the Respondent may consider “any other matters [it] considers necessary”. The matters listed in s 15 are broadly similar to those listed in s 30 which is set out in full below at [26].

21. By s 16 of the WWC Act, the Respondent is empowered to seek further information about an offence or related matter and may terminate an application or cancel an existing WWCC Clearance if the person fails, without reasonable excuse, to provide that information.

22. Division 4 of Part 3 deals with determination of applications. By s 18(2) of the WWC Act, the Respondent must grant a clearance to a person subject to a risk assessment unless the Respondent is satisfied that the person poses a risk to the safety of children. If the Respondent proposes not to grant a WWCC Clearance, by s 19 the person concerned must be notified and given an opportunity to make a submission. Section 20 provides that a final decision must be made and notified to the person concerned. If the decision is not to grant a WWCC Clearance, there must be reasons for the decision, and the person must be notified of the right to seek a review of the decision under Part 4 of the Act.

23. Part 4 of the WWC Act provided for reviews and appeals. A person who has been refused a WWCC Clearance may apply to the Tribunal for review: s 27(1), WWC Act.

24. Sections 30 and 30(1A) of the WWC Act set out matters that the Tribunal must consider when exercising its jurisdiction under Part 4:

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.

Role of the Tribunal

25. Section 9(1) of the Administrative Decisions Review Act 1997 (ADR Act) provides that the Tribunal has administrative review jurisdiction over a decision if enabling legislation provides that applications may be made to the Tribunal for an administrative review. Sub-section 9(2) provides, “If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied”.

26. Section 63 of the ADR Act relevantly provides:

Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

27. Section 28(1) of the NCAT Act provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the Act or any other legislation. In relation to administrative review jurisdiction, s 30(1) of the NCAT Act refers in turn to s 9 of the ADR Act, which refers to jurisdiction conferred on the Tribunal by enabling legislation.

28. The relevant enabling legislation for the purpose of s 9 of the ADR Act is s 27(1) of the WWC Act, which provided that a person who has been refused a WWCC Clearance may apply to the Tribunal for review. While the primary decision is the decision under review, the Tribunal’s role is, as set out in s 63 of the ADR Act, to determine what is the correct and preferable decision having regard to the material before it. It follows that the Tribunal is not limited to reviewing the correctness of the primary decision.

29. For the purpose of determining an application for administrative review, the Tribunal exercises all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2) of the ADR Act. However, in exercising those functions, the Tribunal must not simply “stand in the shoes” of an administrator. As explained in DYH v Public Guardian [1] at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator’s decision:

“The effect of these two subsections is sometimes characterised as the Tribunal being required to “stand in the shoes” of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at [530] and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 at 77.”

30. In making its decision, the Tribunal is not limited to considering only material that was before the original decision-maker, but may consider any relevant material, including, generally, material that post-dates the decision under review: see Shi v Migration Agents Registration Authority [2] at [37]-[38], [45]-[46], [99], [143]; Bilanenko v Commissioner of Police [3] at [10].

31. The Tribunal can exercise all of the functions of the person who made the decision: it can affirm the decision; vary the decision; set the decision aside and substitute for it a different decision, or set the decision aside and remit it to the decision-maker for reconsideration in accordance with any directions or recommendations of the Tribunal. The Tribunal has held that an order under s 27 of the Act should not be made subject to conditions.

32. By s 38(2) of the NCAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

Burden of Proof

33. The WWC Act does not expressly provide for either party to carry an onus in an application for administrative review under Part 4 of the Act and it has been determined that neither party bears an onus of proof in relation to an application under s 27 of the Act: BJB v Office of the Children’s Guardian [4] (BJB) at [32] referred to by the Court of Appeal in Tilley v Children’s Guardian [5] (Tilley) at [23] and see Children’s Guardian v CHN [6] at [89] per Button J.

Hearing

34. The matter was heard by the Tribunal on 26 February 2026.

35. The Applicant was self-represented, and he gave oral evidence and was cross-examined at the hearing.

36. In support of his Application, the Applicant relied on the following material:

(a) Bundle of documents (two volumes) filed 16 June 2025 (A1); (b) Amended s 27 application dated 7 March 2025 (A2); (c) Applicant’s affidavit dated 6 August 2025 (A3); (d) Report by Ms Stephanie Bennett, clinical forensic psychologist, dated 17 September 2024 (SB1); (e) Applicant’s submissions dated 19 December 2025 (AS); (f) Applicant’s reply submissions dated 19 February 2026 (AR); (g) Documents provided to the Respondent during the Risk Assessment (R1, 21-55)

(i) Submission form, dated 25 July 2023. [7] (ii) Character reference of the Applicant’s legal representative in the criminal proceedings, ST, dated 18 July 2023. [8] (iii) Character reference of the Applicant’s family friend, TM, dated 23 July 2023. [9] (iv) Two employer references from LH, dated 3 July 2023 [10] and 8 August 2024. [11] (v) Letter from the Applicant's mother, CK, dated 1 October 2024. [12]

37. The Respondent relied upon the following material:

(a) Bundle of documents (two volumes) filed on 17 December 2024, pursuant to s 58 of the Administrative Decisions Review Act 1997 (R1); (b) Additional bundle of evidence filed 6 November 2025 (R2); (c) Brief of Evidence and the transcripts of the Applicant’s criminal proceedings (A1, 311-650) and further transcript filed by the Respondent on 6 November 2025 (R3); (d) Supplementary Report by Ms Stephanie Bennett, clinical forensic psychologist, dated 18 September 2025 (SB2); (e) Respondent’s submissions dated 29 January 2026 (RS2).

Evidence before the Tribunal

Applicant’s background

38. The Applicant left school in year 11 and commenced a plumbing apprenticeship in 2021. [13] He was awarded a Certificate III in Plumbing in 2024. He was employed as an apprentice plumber in early 2024 and gained experience in civil plumbing. [14] In early 2025, the Applicant commenced employment with his current employer. He attended night classes at TAFE for 18 months and successfully completed a Certificate IV in Plumbing and is a fully licensed plumber. [15] His current work requires him to lay commercial pipes between major centres including schools, hospitals, shopping centres and universities. It is a pre-condition for plumbers to have a WWCC Clearance to be able to attend some of these workplaces. [16]

Criminal charges

39. On 1 July 2019, the Applicant was arrested and charged with one count of intentionally sexually touching a child under 10 years (DV), contrary to section 66DA(a) of the Crimes Act 1900 (NSW) (Crimes Act) (Sexual touching charge), [17] and three counts of indecent assault of a person under 16 years (DV) contrary to section 61M(2) [18] of the Crimes Act (Indecent assault charges). The indecent assaults were alleged to have occurred between January and November 2018. The alleged sexual touching occurred on 27 March 2019. The Applicant was 13-14 years old at the time of the alleged incidents.

40. The three complainants were BG, AG and TG, who are female cousins of the Applicant, and who were respectively aged 7, 10 and 11 years at the relevant time. The three complainants are the daughters of MG1 and MG2 who divorced in mid-2016 and share joint custody of the children. MG1 is the brother of CK, who is the Applicant’s mother.

41. BG was the complainant for the Sexual touching charge and one of the Indecent assault charges. AG and TG were the complainants for the other two Indecent assault charges. [19] The Indecent assault charges were dismissed on a no prima facie basis, and the Sexual touching charge was dismissed by the Children’s Court because the evidence of the complainant (BG) could not be accepted.

Sexual touching charge

42. The NSW Police Facts Sheet records that on 27 March 2019, the Applicant was alleged to have assaulted BG in the loungeroom of her grandparents’ home, while they and other family members were at the house for a joint celebration of the birthdays of BG, AG and TG. It was alleged that while the Applicant was sitting on a three-seater lounge in the loungeroom, he requested BG to watch a video on his mobile phone. The Applicant asked BG to sit on his lap, and that after BG did this, he grabbed her, pulled her pants down and pushed his penis in between BG’s butt cheeks. [20]

43. In addition to BG’s evidence, there was evidence that the Applicant and several children were in the loungeroom of the house watching a film on the day in question. [21] The evidence of AM, a cousin of the complainants who was in the room, was that the Applicant had asked BG to sit on his lap but that BG did not do so. [22] BG gave evidence that when the incident occurred, she was wearing denim blue shorts (which were pulled down by the Applicant) as well as a watch that she used to notice that 20 minutes went by while she was sitting on the Applicant’s lap. [23] She also gave evidence that the Applicant was wearing shorts.

Indecent assault charges

44. The NSW Police Facts Sheet records that on at least two occasions between 1 January 2018 and 30 November 2018, the Applicant indecently assaulted the complainants. The prosecution case focused on incidents occurring at a birthday party for the complainants’ brother CG, which probably took place in September 2018. BG alleged that the Applicant pressed his penis between her bottom cheeks while they were swimming in her grandparents’ pool. [24] TG made a similar allegation against the Applicant. [25] AG alleged that the Applicant asked her to sit on his lap while they were in the loungeroom at their grandparents’ house and that when she refused, that he grabbed her and moved her onto his lap, sliding his hand into the inside of her underpants. [26]

Children’s Court proceedings

45. The Applicant pleaded not guilty to the charges. The matter proceeded to trial in the Children's Court in 2020. BG, AG, and TG each gave evidence and were cross-examined. The Applicant neither agreed to be interviewed by police nor give evidence as was his right.

46. On 21 July 2020, the Applicant’s legal representative foreshadowed that an application would be made with respect to the Indecent assault charges as a no prima facie case, for reason that the prosecution had not rebutted the presumption of doli incapax. [27] The application was successful, and the charges were dismissed by the Children’s Court on 15 October 2020 without factual findings as to the alleged conduct, although the allegations were admitted as tendency evidence regarding the Sexual touching charge. [28]

47. On 4 November 2020, the Applicant was found not guilty of the Sexual touching charge. [29] In concluding that there must be reasonable doubt, Children’s Magistrate Haskett stated: [30]

Looking closely at BG’s evidence, with respect to sequence 1, I find there must be a reasonable doubt as to the [Applicant’s] guilt. BG's account throughout her evidence was inconsistent in a number of respects: with respect to the clothing that she wore, where she eventually said she wore overalls, not shorts; whether she wore a watch or not on her wrist; and the long-pants or shorts that the [Applicant] wore. The two photos in Exhibit #24, which BG agreed were taken at the birthday party on 27 March 2019, taken together with Exhibit #26, indicated that BG was wearing overalls which had clasps at the shoulders, and the wearing of overalls was inconsistent with acceptance of BG's account. BG agreed the [Applicant] did not undo the clasps on her overalls, and she agreed the [Applicant] did not take the overalls off.

Suspicion is not enough. Accordingly, I cannot accept BG's evidence that the [Applicant] pulled her pants down, and that he pushed a bone - his penis - into her bottom crack. With respect to the evidence about the watch that BG wore, it is clear, she said, that she sat on the [Applicant’s] lap, or laid across his body, for 20 minutes, and she knew it was that long because she wore her watch and she timed it. That was said at the police interview of 9 April 2019 (question and answer 156 through to answer 161), and it was also what she said at the transcript for 21 January 2020, at page 76. But again, I cannot accept BG's evidence about this, because the two photos in Exhibit #24 indicate she was not wearing a watch. With respect to these crucial aspects of her evidence, it is my view that BG's evidence was unreliable and, accordingly, the court has a reasonable doubt as to the [Applicant’s] guilt in relation to sequence 1.

48. Her Honour did not consider the likely veracity of the other alleged conduct in any detail, noting: [31]

The Crown argued that the evidence established that the [Applicant] had a sexual interest in BG and her sisters, a tendency to act upon it, which the Crown contended made it more likely that the [Applicant] committed the charged offence, sequence 1. However, the court cannot substitute evidence of other charges, such as sequence 2, 3, or 4, or other alleged activity, or a conclusion that the [Applicant] had a sexual interest in BG, for what was alleged in the particular charge, being sequence 1. The court is concerned with the particular and precise occasion alleged in the charge sequence 1. [32]

49. The Applicant consented to a 12-month Interim Apprehended Violence Order (AVO) towards the conclusion of the Children’s Court proceedings. No admission was involved on the part of the Applicant in agreeing to this order. [33] Upon the application of the police prosecution, the Interim AVO was withdrawn and dismissed on 18 November 2021.

Denial of charges and impact of allegations

50. In his affidavit and in his oral evidence at the hearing, the Applicant denied the alleged conduct which was the subject of the criminal charges. His evidence is that “the charges were motivated by family law issues involving the parents of the complainants.” [34] At the hearing the Applicant said that when his uncle (MG1) and his former partner (MG2) separated, there was a lot of animosity by MG2 towards his family, particularly his mother (CK) and grandmother, who MG2 disliked.

51. In his WWCC Submission Form dated 25 July 2023, the Applicant wrote: [35]

The false allegations raised against me have had a huge impact on me and my family. My extended family can no longer come together to celebrate important events. The stress of being at court added to the high blood pressure of my wonderful grandfather who died not long after the closure of the case. It made my life at school very difficult. The teachers knew I was involved with the courts and this made life very uncomfortable for me while I was at school.

I still don't sleep very well and am often exhausted by the fact that these false allegations have changed my life. I am so fortunate that I am still part of a supportive and loving environment. I have made sure there is no contact at all with (sic) family that raised the allegations.

Expert evidence

Stephanie Bennett, Clinical forensic psychologist

52. Ms Bennett prepared two reports about the Applicant, the first dated 17 September 2024 (First report) [36] prepared at the request of the Applicant’s solicitor, and a supplementary report dated 11 September 2025 (Supplementary report) prepared at the request of the Respondent. [37]

53. The First report was based on Ms Bennett’s two hour and 50 minute clinical interview of the Applicant on 3 September 2024, and the results of the psychometric assessments she administered, including Risk of Sexual Violence Protocol (RSVP), the Million Clinical Multiaxial Inventory-IV (MCMI-IV), and the Wechsler Abbreviated Scale of Intelligence-second edition (WASI-II). [38]

54. In the First report, Ms Bennett noted difficulties with applying the MCMI-IV, including concerns about the validity of the results, due to the Applicant’s limited understanding of the questions. The Applicant presented with highly clinically elevated on the bipolar scale, but Ms Bennett found this result was invalid, likely due to the Applicant not understanding items, his ADHD and/or his dexamphetamine medication. The Applicant did not present as depressed from his results in the MCMI-IV profile. [39]

55. Ms Bennett applied the RSVP to assess the Applicant’s risk of sexual offending against children. She considered the following to be protective factors: absence of sexual offence convictions or further allegations, no reported history of sexual deviancy, no reported attitudes specific to sexual abuse, reported mature intimacy in current relationship, no reported interpersonal problems, reported stable and productive lifestyle in community, no reported issues with substances, personality disorder or mood disorder, no criminal history, no reported history of suicidal ideation, and no reported experience of childhood abuse. [40]

56. Ms Bennett considered the following factors elevate the Applicant’s risk of sexual offending: his ADHD and intellectual functioning which could impact his impulse control (however she noted his engagement in ADHD treatment was positive), and he appeared to have “difficulties coping with significant personal stressors relating to poor health and deaths of family members” (however this was not substantially outside of ‘normal’). [41]

57. Ms Bennett briefly addressed the Applicant’s risk if the conduct occurred as alleged. She reported that there is “no clear evidence that juvenile sex offenders will become adult sexual offenders” and that juvenile offending is not “necessarily [a] manifestation of sexual deviance”. She advised that factors such as “poor emotional regulation and response inhibition can make an adolescent more prone to taking risks.” [42] Ms Bennett concluded that when considering risk factors common to males who sexually offend against children, the Applicant’s risk of potential sexual abuse of a child would be considered to be low, and his risk of general offending also would be considered to be low. [43]

58. The Supplementary report was prepared at the request of the Respondent, who instructed Ms Bennett to assume that the Applicant did engage in the alleged conduct that led to the criminal charges, [44] and provided her with additional information and asked her to clarify aspects of the First report.

59. In the Supplementary report, Ms Bennett stated that none of the additional information provided to her by the Respondent altered her conclusion in the First report that the Applicant “is considered at low risk of sexual reoffending compared to other adult males who have sexually offended.” [45]

60. Ms Bennett made the following observations about the passage of time since the alleged conduct, which she had assumed to be true for the purposes of the report: [46]

While it is positive that [the Applicant] has not been charged with any criminal conduct in the past six years, it is important to note that he has been an adult for less than three of those years. Furthermore, it has only been six years since the alleged offending occurred, which is a relatively short duration of time. This relatively short duration of adult non-offending makes it difficult to reliably assess his longer-term trajectory and risk of reoffending. The transition from adolescence to adulthood can be a period of increased vulnerability, especially for individuals with ADHD and cognitive challenges, as they may struggle more with adapting to adult responsibilities and stressors.

Two key risk factors for future sexual reoffending are the presence of sexual deviance and antisocial orientation (Hanson & Morton-Bourgon, 2005). which often become more apparent or entrenched in adulthood. Given that [the Applicant] has only recently entered adulthood, there has not been sufficient time to fully observe whether such patterns might emerge or how he manages potential stressors that could trigger risk. As already mentioned, his ADHD and lower intellectual functioning may heighten his vulnerability to difficulties in coping with life stress, potentially increasing his risk for future sexual offending.

It is encouraging that [the Applicant] is receiving treatment for ADHD, as effective management of symptoms can improve impulse control and decision-making. Notwithstanding, his continuation of psychotropic treatment for his ADHD would be on a voluntary basis and is dependent on [the Applicant] continuing to adhere to treatment.

Character references

61. In his letter dated 18 July 2023, ST states that he supports the granting of a WWCC Clearance to the Applicant. He has had contact with the Applicant since the finalisation of the criminal proceedings and has observed that he is a mature young man having completed his schooling and embarked upon a trade. He further states that if his own adult children were younger, he would have no problem with the Applicant having unsupervised contact with them. [47]

62. In his letter dated 23 July 2023, TM states that the Applicant: [48]

demonstrates a strong work ethic with dedication to achieving long term career goals and stability. He is an employee who can be relied on to turn up, work hard and carry out his responsibilities to fullness of his abilities. He is eager to learn and is developing the skills necessary to have a long and successful career in his chosen trade which is also a reflection of his approach in his personal life.

63. TM further states that he has two daughters who have grown up with the Applicant, and he “always felt confident and comfortable for [the Applicant] to be around them all their lives.” [49]

64. In his letter dated 8 August 2024, LH states that the Applicant has been employed by his company as an apprentice plumber for the past three years. The company contracts to other organisations and the contractual agreement requires that employees have a WWCC Clearance. As a consequence, if the Applicant “is unable to secure the WWCC, it will impact his ability to perform his duties effectively and could threaten his position within [the] company”.

Submissions

Applicant

65. The material before the Tribunal is inadequate for it to conclude that there is any higher than a low or very low risk that the sexual abuse allegations against the Applicant are true. Accordingly, the Tribunal has no reason to consider that the Applicant poses more than a low risk of harm to the safety of children. [50]

66. The Applicant has been assessed by a psychologist in light of his personal circumstances and medical history as posing a low risk of sexual offending and a low risk of sexual abuse. [51] Relevant to Ms Bennett’s conclusion were the Applicant’s personal and family life, including his recent history of productive employment as a plumbing apprentice, and the prosocial supports around him; his attitudes towards sexual abuse and issues of consent and young people; and the fact that the allegations concerned sexual offending by him at a juvenile age. [52]

67. The Applicant has no criminal history, and seven years have elapsed since the alleged incidents occurred, in which time the Applicant has not been convicted or charged with any other offences, and he has not been accused of any kind of inappropriate behaviour. The Applicant has provided a number of references addressing his family and social connections, his work ethic, reliability and general good behaviour.

68. There are three reasons why a “reasonable person” would allow the Applicant to have direct and unsupervised contact with their child in the setting of child-related work. First, is the low likelihood that the allegations against the Applicant are true; second is the finding by Ms Bennett of the Applicant’s low risk of sexual offending; and third is that the Applicant has been a productive contributor to society in the years since the alleged conduct occurred without any concern about his behaviour or suitability to work around children. [53]

69. For effectively the same reasons, it is in the public interest for the Tribunal to make an order enabling the Applicant to work with children, The material does not allow the Tribunal to conclude that the Applicant poses more than a low risk to the safety of children. Further, the statutory concept of the public interest encompasses other considerations that are accorded less weight than the paramount consideration of children’s safety. One of these is the freedom of individuals to engage in productive employment and voluntary work. In light of the low risk that the Applicant poses to the safety of children, the Tribunal should recognise that it would be contrary to the public interest to deprive the Applicant of an opportunity to continue to engage in plumbing work for his employer of several years. [54]

Respondent

70. The Respondent contends this is a matter that largely turns on the likelihood that the Applicant engaged in sexually abusive behaviour towards the three children. If the Tribunal is satisfied on the balance of probabilities that the conduct did not occur, the Applicant should be granted a WWCC Clearance. It is not necessary for the Tribunal to be positively satisfied that the conduct did occur on the balance of probabilities in order to refuse a WWCC Clearance. That is, that neither the decision by police to bring criminal charges, nor the outcome of the criminal proceedings, are determinative. [55]

71. The matters relied on by the Applicant are not enough to render the allegations made by BG, AG, and TG “without foundation”, such that they can be discarded from further consideration. [56] While the Respondent does not suggest that there was sufficient evidence to find that the conduct occurred beyond reasonable doubt, the Respondent submits that the complainants being truthful about sexual behaviour towards them, even if they were incorrect or confused as to specific surrounding details, is more likely than not. [57]

72. The Respondent contends that the evidence supports a finding that if the alleged conduct did occur, the Applicant is likely to be at an elevated risk of offending when compared to the general population. As more time passes without him reoffending, and as the Applicant advances further into adulthood, this comparative risk will reduce. [58]

73. It is the Respondent’s position that the reasonable person would not allow the Applicant to be unsupervised with their children at this point in time. The reasonable person would be concerned about the alleged conduct. They would consider the inconsistencies identified at trial but would contemplate the possibility that these inconsistencies could be explained without excluding the possibility of offending. The reasonable person would weigh this against the underlying similarity of the allegations, and the children maintaining in police interviews and under cross-examination that the conduct occurred. The reasonable person would also consider the evidence of Ms Bennett that, if the allegations are true, the Applicant is at a higher risk of sexual offending when compared with the general population. [59]

74. The Respondent does not dispute a general public interest in people being able to retain stable employment, though it is an interest largely divorced from the objects of the WWC Act and should be afforded limited weight. In this case, the requirement for a WWCC Clearance arises from a private contractual agreement for a single company. It appears that the Applicant has been able to retain employment despite not having a WWCC Clearance. Moreover, the Applicant has completed his apprenticeship, and the feedback from his employer suggests he is skilled and well-regarded in his current employment. Noting that the majority of his work would be exempt from a WWCC Clearance, the Respondent contends that the public interest does not weigh in favour of the grant of a WWCC Clearance. [60]

Consideration

Legal principles

Tribunal’s protective jurisdiction

75. Having regard to the paramount consideration in section 4 of the WWC Act being the safety, welfare and well-being of children, the jurisdiction of the Tribunal under s 27 is protective, and not punitive, in nature: BJB at [110] AYU v NSW Office of the Children's Guardian [61] (AYU) at [34]; Commission for Children and Young People v FZ [62] per Young JA at [61] and R v Commission for Children and Young People [63] at [130]. The object of the Act is not to impose additional punishment on a person, but to eliminate possible risks to children: CYY v Children’s Guardian (No 2) [64] (CYY) at [26].

76. The protective jurisdiction of the Act was emphasised by Simpson AJA in CXZ v Children’s Guardian [65] (CXZ) at [58]:

“It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.”

Meaning of “risk to the safety of children”

77. The meaning of “risk to the safety of children” is defined in s 5B of the WWC Act to mean a “real and appreciable risk to the safety of children.” The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [66] at [42]:

One does not define risk as meaning minimal risk. One would… 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 word ‘risk’ with the words that follow, namely ‘to the safety of children’…

78. His Honour’s consideration of the meaning of risk has been cited with approval by the Tribunal and the NSW Supreme Court: CTE v Children’s Guardian [67] at [30]; BKE v Office of Children’s Guardian [68] (BKE) at [26] and AYU at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ per Basten JA at [26].

79. In BKE, Beech-Jones J, as his Honour then was, considered at some length the nature of a “real and appreciable risk”. His Honour referred to the decision of the High Court in M v M [69] (M v M), where the Court considered the relevance of an allegation of sexual abuse to the determination of what is in the best interests of a child under the Family Law Act 1975 (Cth). Specifically, the High Court considered the nature of the proof required in a case where an allegation of sexual abuse had been made but had not been the subject of a criminal conviction. The High Court unanimously held that a conclusion that the allegation was not made out on a civil standard did not determine the “wider issue” which confronts a court when it is called upon to decide what is in the best interests of the child. The Court explained at [23]:

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk...

80. In BKE, Beech-Jones J held that, subject to matters not presently relevant, the reasoning of the High Court in M v M “is applicable to fact finding and the process of risk assessment that NCAT undertakes” under the WWC Act. His Honour explained at [33] the relevance of the reasoning of the High Court in M v M:

… [T]he reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

81. This approach was approved by the Court of Appeal in Tilley at [34]-[35] and CXZ at [7(a)] and [28]. In CXZ, the Court of Appeal outlined the test to be applied under s 18(2) of the WWC Act which can be summarised as follows:

(a) the correct test is that set out in Tilley at [34]-[35], adopting the test as explained by Beech-Jones J in BKE citing M v M at [7(a)]; [28]; (b) the Court expressly rejected the proposition that when assessing risk based on disputed allegations of past conduct, the Tribunal is required to adopt a three-step process to consider each allegation in turn; and (c) the language of “lingering doubt and suspicion” has no legal force or significance and is “unhelpful”: at [7(e)]; [29], [79].

82. BKE, Tilley and CXZ establish that the correct approach to dealing with unproven allegations in circumstances where the Tribunal is not satisfied that the allegations (on the available evidence) are proved, but also could not disregard the allegations are groundless, is to address the question of risk by reason of the possibility that the conduct the subject of the allegations occurred: see CXZ at [57].

83. In making the assessment as to risk, the Tribunal must have regard to the matters set out in s 30(1) of the Act.

Section 30 (1) considerations

84. When undertaking a review under Part 4 of the WWC Act, the Tribunal is required to consider the matters set out in s 30(1)(a) of the Act. These are mandatory relevant considerations in the sense described by Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko Wallsend [70] (Peko Wallsend). However, while they must be taken into account, the weight to be attributed to them is a matter for the Tribunal: see Peko Wallsend at 42 which, for the purpose of conducting the review, can exercise all the powers of the primary decision-maker.

(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

85. This sub-paragraph is not limited to offences but includes any “matters” that caused a refusal of a WWCC Clearance. Accordingly, the fact that the Indecent assault charges and the Sexual touching charge were dismissed, does not preclude consideration of the seriousness of the allegations underlying the Charges.

86. The alleged offences were serious, involving sexual acts against young children. Moreover, the alleged acts occurred in what should have been a safe family environment, and the alleged victims are members of the Applicant’s family who would have trusted the Applicant who is their older cousin. The Applicant’s young age at the time of the alleged offending is a mitigating factor. The Applicant has always denied the alleged conduct and claims the allegations were falsely made.

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred

87. The alleged offences occurred between seven and eight years ago. There is no evidence that the Applicant has been accused of sexually inappropriate or criminal conduct since this time.

(c) the age of the person at the time the offences or matters occurred

88. The Applicant was aged 13 years at the time of the alleged 2018 offences and 14 years at the time of the alleged 2019 offence.

(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,

89. These sub-paragraphs refer to victims of offences. The Applicant has not been convicted of any offence, and therefore these sub-paragraphs are not relevant to the Tribunal’s decision. We nevertheless have considered them below.

90. At the time of the offences, BG was 6 or 7, AG was 10 or 11, and TG was 11 or 12 years old. The Applicant is their older cousin, and he would have been aware that they were children. He would also have been aware of their vulnerability as children in a family home in which they expected to be safe.

(g) the person’s present age,

91. The Applicant is currently 21 years old.

(h) the seriousness of the person’s criminal history and the conduct of the person since the matters occurred

92. The Applicant does not have a criminal history.

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

93. The likelihood of repetition by the Applicant of the alleged conduct is dependent on whether it in fact occurred. If it is presumed that the alleged conduct did occur, the expert evidence of Ms Bennett supports a finding that the risk of repetition is marginal or limited. In both her reports Ms Bennett assessed the Applicant of “low” risk according to the Risk for Sexual Violence Protocol (RSVP), and identified a range of protective factors, including the Applicant's prosocial life, stable employment and access to supports, consisting of his family, girlfriend and male friends with whom he attended school. Ms Bennett appropriately acknowledged “the limitations inherent in assessing the risk of sexual reoffending for an adult who has allegedly offended as an adolescent” and of predictive methodologies in general. [71] Ms Bennett also identified that, while still low overall, persons who offend as adolescents do have a higher likelihood of offending compared to the general population. She advised that denial of the offending may impact the efficacy of treatment but is “not independently predictive of reoffending.” [72]

(i1) any order of a court or tribunal that is in force in relation to the person

94. There is no court or tribunal order in force.

(j) any information given by the applicant in, or in relation to, the application

95. The Applicant relies on the evidence filed by him in these proceedings which has been considered by the Tribunal.

96. The character references support a finding that the Applicant has lived a prosocial life since the criminal proceedings, and confirm his consistent denial of the alleged conduct.

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A

97. There is no information obtained by the Respondent pursuant to s 36A of the WWC Act.

(k) any other matters that the Children’s Guardian considers necessary.

98. The Tribunal considers that all relevant matters have been addressed.

Conclusion on section 30(1) considerations

99. Our substantive role is to assess risk, and specifically whether the Applicant poses a risk to the safety and well-being of children and young people. We have based our consideration on all the evidence before the Tribunal, including the oral evidence at the hearing and in documentary form.

100. As the task of the Tribunal is to determine risk, consideration of allegations and the need to make findings about them is relevant only to that task. Risk is to be assessed in respect of the present and future, not an applicant’s past risk to children. However past behaviour can be an indicator of future behaviour being a concept accepted by criminal courts in sentencing.

101. Based on a consideration of the evidence before the Tribunal we are unable to conclude that there is any higher than a low or very low likelihood that the sexual abuse allegations against the Applicant are true. Accordingly, and having had regard to the mandatory considerations in section 30(1) of the WWC Act, we are not satisfied that the Applicant currently poses a “risk to the safety of children” as defined in s 5B of the WWC Act, and as described by Young CJ in V set out at [88] above*.* In our view, the risk of the Applicant “preying on a child” is currently no greater than that of any adult. This finding is supported by the objective evidence provided by Ms Bennett, who concluded that when considering risk factors common to males who sexually offend against children, the Applicant’s risk of potential sexual abuse of a child would be considered to be low, and his risk of general offending also would be considered to be low. [73] ”

102. In reaching this conclusion, we have had regard to the Tribunal’s protective jurisdiction, the approach set out in the authorities cited in [86]-[93] above, and the paramount consideration recognised in section 4 of the WWC Act being “the safety, welfare and well-being of children, and in particular, protecting them from child abuse” which overrides any other interest.

Section 30(1A) considerations

103. Having found that the Applicant does not currently pose a risk to the safety of children, we must also have regard to the considerations in section 30(1A) of the WWC Act before we consider making an order under Part 4 of the Act which has the effect of enabling a person to work with children in accordance with the WWC Act. The Tribunal must consider whether a reasonable person would allow his or her child to have direct contact with the Applicant that is not directly supervised by another person whilst engaged in child-related work, and whether it is in the public interest for an order to be made that would enable the Applicant to work with children.

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

104. The Tribunal must not make an enabling order unless it is satisfied that a “reasonable person” would allow their own child to have direct, unsupervised contact with the Applicant while engaging in any child-related work. This is an objective test: PQR v Secretary, Department of Justice and Regulation (No 2). [74]

105. The “reasonable person” is taken to have knowledge of any criminal offending, the circumstances surrounding the offending, the Applicant’s criminal history (if any) and the length of time since the offending. While the “reasonable person” would “not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed”, the reasonable person also would not “put aside all scepticism and reasonable caution in some over-optimistic attempt to facilitate rehabilitation”: VQB v The Secretary to the Department of Justice [75] cited in DAI v Children’s Guardian [76] and CGR v Children’s Guardian. [77]

106. The reasonable person would be aware of the Applicant’s alleged conduct and that the criminal charges against him were dismissed. The reasonable person, when assessing the risk to their own child, would consider the inconsistencies identified at trial by Magistrate Haskett, and consider the possibility that these could be explained without excluding the possibility of offending. The reasonable person would also consider the evidence of Ms Bennett that, if the allegations are true, the Applicant is at a higher risk of sexual offending when compared with the general population. They also would have regard to the passage of time since the alleged conduct, that the Applicant has not been accused of inappropriate behaviour or charged with any criminal offence in the seven years since the alleged conduct occurred, and he has lived a pro-social life and has been consistently employed as an apprentice and fully qualified plumber for the past five years.

107. We are satisfied that the reasonable person would, after careful consideration of the allegations and the evidence, reach the same conclusion as the Tribunal, namely that the Applicant does not currently pose a risk to the safety of children. The reasonable person would find that any risk posed by the Applicant is neither real or appreciable, noting that all adults pose some risk to children, and the reasonable person would also recognise that the Applicant is not presumed to be a risk to children.

108. Accordingly, we are satisfied that the reasonable person would allow his or her child to have direct contact with the Applicant that is not directly supervised by another person whilst engaged in child-related work.

109. We are therefore satisfied that the reasonable person test in s 30(1A)(a) of the WWC Act has been met.

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

110. The Tribunal has accepted that the broader interests of the community will take priority over the interests of the individual: see CYY, [78] GJM v Children's Guardian, [79] GTN v Children's Guardian, [80] GYV v Children's Guardian, [81] GVD v Children's Guardian, [82] GPC v Children's Guardian. [83]

111. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY*,* [84] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act at [24]-[26]:

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.

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’.

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.

112. The Court’s reasoning in PMY has been endorsed in several recent Tribunal decisions: see GBQ v Children*’s Guardian, [85] GSZ v Children’s Guardian, [86] and GYV v Children’*s Guardian. [87]

113. The Tribunal, in applying the public interest test, must do so by reference to the particular statutory framework, and have regard to the subject matter, scope, and purpose of the WWC Act. In particular, it is necessary to consider the object in section 3, which is to protect children, and the paramount consideration in section 4 which is the “safety, welfare and well-being of children and, in particular, protecting them from child abuse”. That requires a consideration that errs on the side of caution.

114. The statutory concept of the public interest encompasses other considerations that are accorded less weight than the paramount consideration of children's safety. In ZZ v Secretary of the Department of Justice, [88] (ZZ) Justice Bell reviewed the authorities in relation to the public interest test and adopted an analysis that included consideration of the right of a person to engage in work: [89]

While decisions of the tribunal have correctly emphasised that the main purpose of the Working with Children Act is the protection of children from harm, they have also acknowledged the relevance and importance of rehabilitating offenders, their right to work and other similar considerations. So, in MH, her Honour Judge Harbison said the Working with Children Act did not prevent all persons with a serious criminal record from ever working with children again. Rather:

It is designed so that an informed assessment can be made in every individual case of the risk of harm to children arising out of his or her past behaviour. It places a heavy burden on the decision maker, to make an assessment as to what is likely to happen in the future, based on what is known to have happened in the past. The assessment must be rigorously made, given the aim of the legislation, which is the protection of very vulnerable children from sexual harm or violence.

…

In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others. … This accords with the statement of Barwick CJ in Forbes that there is a ‘public interest in the exercise of knowledge and skills, the use of which may conduce to the public benefit’ and ‘[i]t is in the public interest that a man should be able to exercise his capacity to work’.

115. The Tribunal has adopted the views of Bell J in ZZ identifying that “rehabilitating offenders, their right to work and other similar considerations” is relevant and important, even if it is not the paramount consideration of the WWC Act: GTN v Children*’s Guardian, [90] Sunol v Children’s Guardian, [91] GJM v Children's Guardian, [92] GYV v Children’*s Guardian, [93] GVD v Children's Guardian, [94] and GPC v Children's Guardian, [95] and GVK v Children’s Guardia**n. [96]

116. The Applicant requires a WWCC Clearance for the purpose of his employment as a plumber. The letter from the Applicant’s employer, LH, states that employees having a WWCC Clearance is a term of its agreements with organisations with whom the company contracts. In light of the low risk that the Applicant poses to the safety of children, we find it would be contrary to the public interest to deprive the Applicant the opportunity to continue work as a plumber with his employer of five years.

117. We are satisfied that the public interest test in s 30(1A)(b) of the WWC Act has been met.

Conclusion

118. For the reasons set out above, based on the evidence before the Tribunal and having regard to the mandatory considerations in s 30(1) of the WWC Act, we are satisfied that the Applicant currently does not pose a risk to the safety and well-being of children.

119. We are also satisfied, in accordance with s 30(1A)(a) of the WWC Act, that a reasonable person would allow his or her child to have direct contact with the Applicant that is not directly supervised by another person while the Applicant is engaged in any child-related work. Further, we find in accordance with s 30(1A)(b) of the WWC Act that the granting of a WWCC Clearance to the Applicant would be in the public interest.

120. It therefore follows that the correct and preferable decision is to set aside the Respondent’s Decision dated 1 November 2024.

Order

121. The Tribunal sets aside the decision under review and substitutes that decision with the Tribunal’s decision that the Applicant be granted a working with children check clearance.

**********

Endnotes

[2021] NSWCATAD 136.

(2008) 235 CLR 286.

[2022] NSWCATAD 76.

[2014] NSWCATAD 164.

[2017] NSWCA 174.

[2017] NSWSC 1228.

R1, 22-24.

R1, 25-27. ST’s letter attaches a reporting letter from the Applicant's barrister, BR, dated 5 November 2020, R1, 28-30.

R1, 31.

R1, 32-33.

R1, 39.

R1, 55.

A3 [12].

A3 [14].

A3 [15].

A3 [16].

Sequence 1.

Sequences 2-4.

Transcript dated 17 July 2020, p59ff.

Transcript dated 4 November 2020, p4 lines 10-18.

Transcript dated 4 November 2020, p6 lines 21-25.

Transcript dated 20 July 2020, pp20-22.

Transcript dated 21 January 2020, pp72-80.

R1, pp 210-11; see generally transcript dated 21 January 2020, pp.63-88; transcript dated 23 January 2020, pp.97-102.

R1, pp. 212; see generally transcript dated 17 July 2020, pp.31-45.

R1, pp. 211-12; see generally transcript dated 23 January 2020, pp.123-132.

Because the charges related to alleged incidents when the Applicant was younger than 14 years old, the prosecution was required to rebut the presumption of doli incapax, that is, by proving beyond reasonable doubt that the Applicant knew that the conduct constituting the physical element of the charged offences was morally wrong or "seriously wrong": see RP v The Queen [2016] HCA 53; (2016) 259 CLR 641 [9]; Children (Criminal Proceedings) Act 1987 (NSW), section 5. Evidence of such knowledge cannot take the form of an inference from the doing of the charged acts. The prosecution thus needed to point to evidence about the applicant's education or the environment surrounding the allegations to show that he knew that the charged acts were morally wrong.

See transcript dated 15 October 2020, pp.15-19.

A1, 636.

A1, 635-636.

A1, 636.

A1, 635-636.

R1, 26.

R1, 22.

R1, 23.

R1, 40-52 referred to as SB1.

SB2.

SB1, [4].

SB1, [40]-[41].

SB1, [34].

SB1, [34]-[35].

SB1, [34].

SB1, [52].

SB2, [5].

SB2, [19].

SB2, [15]-[17].

R1, 27.

R1, 31.

R1, 31.

AS [20].

AS [22], [24].

AS [25].

AS [26].

AS [27].

RS, [7].

RS, [20] citing CXZ at [57].

RS [20].

RS [29].

RS [37].

RS [44].

[2014] NSWCATAD 69.

[2011] NSWCA 111.

[2002] NSWIRComm 101.

[2017] NSWCATAD 262.

[2020] NSWCA 338.

[2002] NSWSC 949; 56 NSWLR 476.

[2018] NSWCATAD 28.

[2015] NSWSC 523.

(1988) 166 CLR 69; [1988] HCA 68.

(1986) 162 CLR 24; [1986] HCA 40.

SB2 [20].

SB2 [25].

SB1, [52].

[2017] VSC 514 at [57].

[2013] VCAT 789 at [36].

[2017] NSWCATAD 308 at [90].

[2017] NSWCATAD 295 at [94].

[2017] NSWCATAD 262 at [75].

[2025] NSWCATAD 48 at [72]-[73].

[2025] NSWCATAD 197 at [63].

[2025] NSWCATAD 20 at [47]-[48].

[2025] NSWCATAD 251 at [72].

[2025] NSWCATAD 222 at [146].

[2012] VSCA 143.

[2024] NSWCATAD 324 at [103].

[2025] NSWCATAD 206 at [93].

[2025] NSWCATAD 20 at [49].

[2013] VSC 267.

At [202]-[204] footnotes omitted.

[2025] NSWCATAD 197 at [63]-[64],

[2024] NSWCATAD 319 at [173]-[174].

[2025] NSWCATAD 48 at [74].

[2025] NSWCATAD 20 at [47]-[48].

[2025] NSWCATAD 251 at [72].

[2025] NSWCATAD 222 at [146].

[2026] NSWCATAD 66 at [133].

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