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[2002] NSWSC 949
respondent. Application is dismissed
A man in his sixties asked the Tribunal to lift a legal ban preventing him from driving buses because of three sexual convictions against boys that were more than 30 years old. The law says such people are prohibited from child-related work unless the Tribunal is convinced they are no risk. A psychologist found the man was at low-to-medium risk of repeating sexual offences because so much time had passed and he was older, but still worried about his quick temper, suspicious personality and history of poor self-control. The man gave only vague, uncorroborated information about the last three decades of his life and was caught out not telling the truth about a church group, a new partner and complaints at his old job. Because he could not prove he was safe, the Tribunal refused his application.
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The applicant, referred to throughout the reasons by the pseudonym PV, was a 60-year-old man at the time of the 2005 hearing. More than thirty years earlier he had been convicted of three sexual offences, each involving male children under the age of 16. In 1964, at age 19, he pleaded guilty to wilful and obscene exposure after being observed masturbating in a suburban park near a ten-year-old boy playing nearby; he was placed on a twelve-month recognisance, fined £30 and undertook to seek psychiatric treatment. In 1970, at age 25, he was convicted of attempting to procure an act of indecency with a 15-year-old schoolboy whom he had given a lift to and then offered money to masturbate him; a six-month sentence was suspended upon a three-year recognisance and a $200 fine. In 1973, at age 28, he was convicted of aiding and abetting an indecent assault on another 15-year-old boy after the two mutually masturbated in a public toilet; the police interview in which he admitted the conduct was tendered before the Tribunal.
These convictions automatically made PV a “prohibited person” under the Child Protection (Prohibited Employment) Act 1998. It became an offence for him to engage in child-related employment. He applied to the Administrative Decisions Tribunal under s 9(1) for an order declaring that the Act should not apply to him so that he could work again as a bus driver, a role that would bring him into contact with children. The Commission for Children and Young People opposed the application, contending that PV had not proved he was free of risk to children.
The Tribunal received a detailed report and oral evidence from psychologist Dr Christopher Lennings, who had assessed PV using the STATIC-99 actuarial instrument, a structured clinical assessment and personality testing. On the original STATIC-99 scoring PV fell into the high-risk category for sexual recidivism, but Dr Lennings adjusted this to low-to-medium after taking account of the 2003 revisions that require opportunity to reoffend to be factored in; PV had never been imprisoned and had therefore enjoyed maximum opportunity. Dr Lennings considered the STATIC-99 less reliable given the very long offence-free period. He noted a constellation of risk factors: a history of sexual abuse as a child, past alcohol abuse, mental-health difficulties, hostile and aggressive behaviour, an “odd and eccentric nature”, chronic suspiciousness, prickliness, significant interpersonal difficulties, conflicts around sexuality, disinhibited personality and occasional hypermania. Dr Lennings concluded that PV’s 1967–1973 conduct was consistent with a paedophilic orientation, but that the chance of repetition after so many years was minimal. He thought it more likely that PV would commit a violent offence and that, if working with children, there was a real risk they would be exposed to his disinhibited, aggressive and hostile behaviour.
During the hearing on 11 October 2005 (with submissions closing 10 November 2005) several inconsistencies emerged. PV had earlier stated, including on oath, that he had not participated in any community or voluntary groups since 1981; on the final hearing day he disclosed membership of a church congregation attended mainly by homosexual men and lesbians. He first denied, then admitted, having a partner with whom he shared a bed on weekends. He had told Dr Lennings there had never been any major complaints during fifteen years as a bus driver, yet his employment files contained numerous complaints, none sexual. A short testimonial from an acquaintance of ten years referred vaguely to “problems” that PV had “noted, taken on board and remedied” but said nothing about children or sexual conduct. PV explained his limited corroborative material by noting that people from the 1960s and 1970s no longer knew him and that he had changed his name by deed poll in 1984. The respondent’s searches of former employers and the Department of Community Services had found nothing adverse, but the late disclosure about the church meant those inquiries were incomplete.
Judicial Member Britton delivered reasons on 20 October 2005 dismissing the application. She found that, in the absence of better evidence about PV’s conduct over the preceding thirty years and given the non-disclosures, she could not be satisfied that the risk of reoffending was not real and material. It was therefore unnecessary to decide the Commission’s alternative submission that there remained a real risk of physical or verbal abuse of children. A non-publication order under s 126 of the Administrative Decisions Tribunal Act 1997 was made, with the official copy of orders containing PV’s real name supplied only to the parties.
Judicial Member Britton’s reasoning is tightly anchored in the statutory text and the binding authorities on the meaning of “risk”. Section 9(4) of the Child Protection (Prohibited Employment) Act 1998 is expressed negatively: the Tribunal “is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children”. The onus is therefore on the applicant and the standard is the Briginshaw standard, requiring satisfaction on the balance of probabilities to a level commensurate with the seriousness of the allegations and consequences.
The Member adopted without reservation the test articulated by Young J in Commission for Children and Young People v V [2002] NSWSC 949, itself endorsing Haylen J’s earlier analysis in R v Commission for Children and Young People [2002] NSWIR Comm 101. At paragraph [6] she records that “risk” means “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child”. That formulation is expressly stated to be binding on the Tribunal. She also noted Young J’s observation that the power to impose conditions under s 9(9) is not to be disregarded; conditions can operate to bring an applicant who would otherwise cross the risk threshold below it.
Each of the s 9(5) factors was addressed. The index offences were serious, involving deliberate sexual conduct with boys aged 10 and 15 when PV was 19, 25 and 28. The age differentials were substantial. Although the offences were old and PV was now 60, Dr Lennings cautioned that reduced libido with age does not necessarily eliminate risk in child-sex offenders. PV’s broader criminal record, while containing no further sexual matters, included malicious damage, assault and a 2003 charge (dismissed under s 10) for failing to disclose his prohibited-person status. The “other relevant matters” under s 9(5)(f) assumed decisive importance: the expert evidence, the paucity of life-history evidence, the absence of protective factors (stable relationship, insight, impulse control, supportive networks) and, critically, the inconsistencies and non-disclosures.
The Member carefully catalogued the discrepancies between PV’s statements to the Tribunal, to the respondent and to Dr Lennings. These were not treated as decisive proof of ongoing risk but as undermining the limited positive case PV advanced. Because the index offences suggested paedophilic tendencies, evidence of subsequent appropriate conduct with children took on “particular importance”. Yet that evidence was “at best scant and entirely uncorroborated”. A self-represented applicant faces practical difficulties, and the Member acknowledged that legal assistance might have enabled better corroboration. Nevertheless the statute places the onus on the applicant. Mere assertion of reformation coupled with an absence of contradictory material from the Commission is insufficient. In the absence of “better evidence” the Member could not reach the affirmative state of satisfaction required by s 9(4). The application was therefore dismissed at paragraph [38].
Prior to the Child Protection (Prohibited Employment) Act 1998 a conviction for a sexual offence did not automatically bar a person from all child-related work. The Act introduced a bright-line prohibition, making it an offence for a “prohibited person” to apply for, undertake or remain in child-related employment. Section 5(2) and s 9 together created a statutory safety valve: the Administrative Decisions Tribunal could declare that the Act does not apply to a particular person and offence. The two authorities cited by the Member—R v Commission for Children and Young People and Commission for Children and Young People v V—supplied the authoritative construction of the pivotal word “risk”. Haylen J had emphasised that the concept is not a mere theoretical or possible risk arising from the fact of conviction but an “unacceptable risk, a real risk, a likelihood of harm or a recognisable potential”. Young J refined this into the “real and appreciable risk … greater than the risk of any adult preying on a child” test and confirmed that conditions under what is now s 9(9) could be used to manage residual risk.
This decision illustrates the practical operation of that framework in a borderline case. It confirms that the passage of decades and advanced age are powerful mitigating factors but do not automatically discharge the onus. It underscores the need for applicants to place before the Tribunal concrete, preferably corroborated, evidence of prosocial conduct over the relevant period, especially where expert opinion flags personality or impulse-control difficulties. The decision also demonstrates that non-disclosures, even if capable of innocent explanation, can fatally erode the Tribunal’s confidence in the applicant’s overall account. After this decision, practitioners advising prohibited persons understood that a bare denial of risk, even supported by an expert report showing low-to-medium actuarial risk, would rarely suffice without a comprehensive, verified narrative of reformation and the presence of protective factors.
Paragraph [5]–[6] contains the legal test that drove the outcome: “The meaning of the word ‘risk’, for the purpose of s 9(4) was considered by Young J … ‘risk’ in the context of s 9(4) meant ‘a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child’. That test is now binding on the Tribunal.” In plain English the Tribunal cannot guess or speculate; it must be positively satisfied that the particular person is safer than the ordinary adult stranger. That is a deliberately high bar.
At paragraph [7] the Member records Young J’s view that conditions under s 9(9) “may make an Applicant ‘who would otherwise pose some risk to children into an Applicant who does not pose a real unacceptable risk to children’”. This passage signals that the Tribunal can be creative with conditions (for example, supervised work, no one-to-one contact, ongoing psychological review) but only if the applicant first supplies enough material to show that risk can be managed down to an acceptable level. In this case no such conditions were considered because the baseline evidence was too thin.
Paragraph [23] summarises Dr Lennings’ opinion: the conduct from 1967 to 1973 was “consistent with a paedophilic orientation” yet “Given the passage of time since the last offence of a sexual nature … there was a minimal chance that that behaviour would be repeated. He thought it more likely that the Applicant might commit a violent offence … if he were to work with children there was a real risk according to Dr Lennings that they might be exposed to the Applicant’s disinhibited, aggressive and hostile behaviour.” This passage shows the expert evidence was not wholly adverse on sexual recidivism but raised a different, non-sexual risk that the Tribunal ultimately did not need to decide.
The dispositive finding appears at paragraph [36]: “In the absence of better evidence about the Applicant’s conduct over the past 30 years, I could not be satisfied that the risk of him reoffending is not real and material.” Stripped of legalese this means: “You have not given me enough trustworthy information to be confident you are safe; therefore I must say no.”
This decision is triggered whenever a prohibited person with historical sexual offences against children seeks a s 9 exemption and the evidence displays any of the following features: (1) index offences showing a pattern of deliberate sexual conduct with significantly younger male victims; (2) an expert report that, even after adjustment for time and age, still identifies personality, impulse-control or attitudinal risk factors; (3) an absence of independent corroboration of appropriate conduct with or around children over the intervening decades; or (4) any material inconsistency between the applicant’s statements to the Tribunal, the Commission or the assessing psychologist. The decision is especially relevant where the applicant is self-represented and therefore struggles to assemble collateral evidence, or where the proposed employment (such as bus driving) involves unsupervised, transient contact with children. It stands for the proposition that the statutory onus cannot be discharged by assertion plus an offence-free period alone; affirmative, tested evidence of insight, stability and prosocial behaviour is required.
Although the reasons themselves do not cite subsequent decisions, the legal propositions extracted from Commission for Children and Young People v V and applied in this matter have been treated as authoritative in the Tribunal’s ongoing jurisprudence. The formulation that risk must be “real and appreciable” and exceed the baseline risk presented by any adult has been repeatedly cited as the governing test. The emphasis on the need for applicants to provide concrete, corroborated evidence of conduct since the index offences, rather than relying on the mere passage of time, has guided the assessment of “other relevant matters” under s 9(5)(f). The recognition that non-disclosures or inconsistencies can legitimately erode confidence in an applicant’s reliability has been applied in later matters where applicants omitted details of current relationships, community activities or complaints in prior employment. The Member’s acknowledgment that self-represented litigants face evidentiary difficulties has also informed procedural approaches in subsequent hearings, although it has not altered the statutory onus. The decision’s treatment of STATIC-99 scores—accepting that they must be adjusted for opportunity to reoffend and that their reliability diminishes over very long offence-free periods—has equally been followed in later expert-evidence cases.
Several questions are left unresolved by these reasons. First, how much corroborative material is “better evidence” sufficient to discharge the onus in a case where the expert assesses sexual-recidivism risk as low? The Member notes that legal representation might have enabled PV to obtain more material, but does not specify what quality or quantity would have tipped the balance. Second, the interaction between the risk of sexual reoffending and the risk of non-sexual aggressive or hostile behaviour toward children is left undecided; the Member expressly found it unnecessary to reach the Commission’s alternative submission. In a future case where the only live risk is behavioural rather than sexual, would the same “real and appreciable risk” test apply with equal stringency? Third, the weight to be given to protective factors—stable intimate relationship, ongoing psychological treatment, insight into past offending—is discussed but not quantified. Finally, the extent to which conditions under s 9(9) can be used creatively in cases of personality or impulse-control difficulties remains open; the Member records the principle but did not need to apply it on these facts. These issues continue to require careful case-by-case evaluation.
Most practitioners assume that thirty offence-free years plus an actuarial score in the low-to-medium range will almost automatically satisfy s 9(4). This decision demonstrates the opposite: even a low-to-medium sexual risk can be fatal if the broader personality and lifestyle evidence is thin or inconsistent. Another trap is treating the Commission’s failure to find adverse material as positive proof of good character; the onus remains on the applicant, and incomplete inquiries caused by late disclosure simply enlarge the evidentiary gap. Self-represented applicants frequently underestimate the need for independent witnesses who can speak directly to their conduct around children; a single vague reference is almost worthless. Finally, many applicants and their advisers overlook that the Tribunal may draw adverse inferences from non-disclosure of apparently neutral facts such as church membership or a new partner; the Member treated those omissions as casting doubt on the reliability of the entire account. These nuances explain why a seemingly strong “time heals all” case can still fail.
CITATION: PV v Commission for Children and Young People [2005] NSWADT 237 DIVISION: Community Services Division APPLICANT PARTIES: PV RESPONDENT Commission for Children and Young People FILE NUMBER: 054019 HEARING DATES: 11/10/2005 SUBMISSIONS CLOSED: 10/11/2005 DATE OF DECISION: 10/20/2005
BEFORE: Britton A - Judicial Member APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101 APPLICANT REPRESENTATION: In person RESPONDENT M England, solicitor ORDERS: Application is dismissed
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, 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 The Applicant, who is now 60 years of age, was convicted of three offences of a sexual nature more than thirty years ago. All involved persons under the age of 16. As a consequence, by the operation of the Child Protection (Prohibited Employment) Act 1998 (Child Protection Act), he is now a "prohibited person" and it is an offence for him to work in child-related employment. He has applied to the Tribunal for an order under s 9(1) of the Child Protection Act, which, if granted, would allow him to work with children. He seeks this order so that he can pursue employment as a bus driver. The Respondent argues that the Applicant has failed to establish that he is not a risk to children and therefore the application should not be granted. 2 In these reasons, because of the sensitivity of this matter, I have decided not to publish any details that could identify the Applicant or anyone referred to in the proceedings other than the experts. The Applicant is referred to in these reasons by the pseudonym, "PV". The official copy of the orders provided to the parties will include the name of the Applicant. Relevant legislation 3 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection Act is not to apply to him or her. Section 9(1) provides that, on application from a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply to him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9). 4 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account: (a) the seriousness of the offences with respect to which the person is a prohibited person, (a1) the period of time since those offences were committed, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed, (d) the difference in age between the prohibited person and each such victim, (d1) the prohibited person's present age, (e) the seriousness of the prohibited person's total criminal record, (f) such other matters as the tribunal considers relevant. Onus of Proof 5 The Applicant carries the onus, on the Briginshaw standard, that he is not a risk to children. The meaning of the word "risk", for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J's analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR Comm 101, Haylen J said that s 9(4) was focussed on: "…not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights." ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].) 6 Young J held at [42] that "risk" in the context of s 9(4) meant "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child". That test is now binding on the Tribunal. 7 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission that it was not permissible to impose conditions in order to lift the Applicant over the risk threshold. His Honour said that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an Applicant "who would otherwise pose some risk to children into an Applicant who does not pose a real unacceptable risk to children": par [46]. Index offences 8 Wilful and Obscene Exposure In 1964 the Applicant, then aged 19, was convicted of the charge of "wilful and obscene exposure" after entering a guilty plea. Sentence was deferred and the Applicant was placed on a recognisance to be of good behaviour for a period of twelve months and fined 30 pounds. 9 The police facts sheet discloses that the Applicant had been masturbating outside a men's toilet block in a suburban park a short distance away from where a ten-year-old boy had been playing. 10 The Applicant gave an undertaking to the Court that he would seek medical and psychiatric treatment. 11 Attempt to procure an act of indecency In 1970 the Applicant, then aged 25, was convicted of the charge of "attempt to procure an act of indecency " and received a six-month custodial sentence which was suspended upon him entering a recognizance for three years and paying a fine of $200. 12 The transcript of the evidence given in court by the victim, a 15-year-old schoolboy, was tendered in these proceedings. The boy stated that he had accepted a lift from the Applicant who then invited him back to his place for a drink. The boy refused that offer and the Applicant then offered him a dollar to "pull him off". The Applicant admitted these allegations but told the police he had only been joking. 13 Aid and abet indecent assault on male person In 1973 the Applicant, then aged 28, was convicted of the charge of "aid and abet indecent assault on male person". The victim was a boy aged 15 years. 14 The police record of interview with the Applicant was tendered in these proceedings. At interview the Applicant admitted that he and the boy had masturbated each other in a public toilet. Applicant's Age (s 9(5)(d1)) 15 The Applicant is now 60 years of age. Seriousness of Applicant's total criminal record (s 9(5)(e)) 16 The Applicant's criminal record includes a number of convictions in addition to the index offences. None are of a sexual nature. They include malicious damage (1973) and assault (1984). In 2003, the Applicant was charged with making a false statement in failing to disclose that he was a prohibited person. That charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1992. Other relevant matters (s 9(5)(f)) 17 The Applicant was interviewed and assessed by psychologist, Dr Christopher Lennings, at the request of the Respondent. A report prepared by Dr Lennings, dated 11 July 2005, was tendered in these proceedings. In addition, Dr Lennings gave oral evidence. 18 Dr Lennings tested the Applicant using three assessment tools: STATIC-99, structured clinical assessment and personality assessment. 19 STATIC-99 is an actuarial test used to predict recidivism rates among known sex offenders by weighing key static or historical variables. According to Dr Lennings, on this test the Applicant fell within the high-risk group for sexual reoffending. That score, explained Dr Lennings, should be reduced as a consequence of the revisions to STATIC 99, introduced in 2003, which require the opportunity to reoffend to be taken into account in the calculation of risk. As the Applicant has never been incarcerated and therefore theoretically, has had the maximum opportunity to reoffend, Dr Lennings thought his risk of reoffending would more properly be described as low to medium. 20 Dr Lennings is of the opinion that the very long period since the Applicant has committed offences of a sexual nature means that STATIC 99 might not be a reliable measure for assessing risk in this case. 21 Dr Lennings identified a number of factors that were a cause for concern the assessment of risk. These included the Applicant's history of sexual abuse; alcohol abuse; mental health problems and hostile and aggressive behaviour. 22 At interview, Dr Lennings observed the Applicant to be a person who had difficulty in being able to control and to moderate his personality. He concluded that the Applicant had an "odd and eccentric nature" and presented as a "chronically suspicious and prickly person who has significant difficulties in interpersonal relationships". In Dr Lennings' view, the Applicant presented overall as a person "who has significant conflicts around sexuality, who has quite a disinhibited personality style with a tendency toward hypermania from time to time". 23 In Dr Lennings' view, the Applicant's conduct throughout the period 1967 to 1973 is consistent with a paedophilic orientation. Given the passage of time since the last offence of a sexual nature Dr Lennings considered there was a minimal chance that that behaviour would be repeated. He thought it more likely that the Applicant might commit a violent offence. Given his long history of difficulties in restraining his impulsive behaviours, if he were to work with children there was a real risk according to Dr Lennings that they might be exposed to the Applicant's disinhibited, aggressive and hostile behaviour." Findings and Conclusions 24 The Applicant's case rests largely on his claim that he is, in effect, a reformed character. He asserts that this is illustrated by the fact that he has not acted in an inappropriate way with children since the conviction for his last sex offence in 1973. He asserts that his past is behind him and the conduct that led to his convictions for sex-related offences will not be repeated. 25 The expert evidence supports this contention at least in relation to the possibility of any sexual reoffending. The basis for Dr Lennings' opinion that the Applicant represents a low risk of sexually reoffending was first, the passage of time since any report of sexually inappropriate conduct and second, the Applicant's age. Of these he considered the first to be the most significant. According to Dr Lennings a decrease in libido and, consequently the urge to reoffend, was inevitable in a man of the Applicant's age. However he cautioned against placing undue reliance on this in the light of research, which he claimed, indicated that while recidivism rates among sex offenders tended to drop off with age, this is not necessarily true for child sex offenders. 26 In the course of these proceedings a number of issues arose which suggest that the Applicant might not have entirely forthcoming in the information he provided the Tribunal, the Respondent and Dr Lennings. For example, he revealed on the final day of hearing that he was a member of a church congregation. On two earlier occasions, once under oath, he claimed he had not participated in any community or voluntary group since 1981. When asked to explain this apparent inconsistency, he stated he had understood the question to be about organisations in which school-aged children participated. On his account, his church was attended primarily by homosexual men and lesbians and the only children that attended were babies. That claim conflicts with evidence given at the commencement of the final day of hearing, which was to the effect that the Applicant came into contact with, and had conversations with, the children of members of his church congregation. 27 At the final day of hearing, the Applicant disclosed he had a partner. According to the Applicant they shared a bed on weekends but did not have a sexual relationship. The Applicant did not tell Dr Lennings about that relationship when he saw him in late June. Nor did the Applicant admit to the relationship when questioned by the Respondent in these proceedings. The Applicant explained that the reason he denied being in a relationship when questioned by the Respondent was because it did not commence until early June and the question was asked in late May. This of course does not explain why this information was not disclosed to Dr Lennings. 28 The Applicant told Dr Lennings that that there had never been any major complaint about him throughout the 15 years he had worked as a bus driver. As Dr Lennnings noted, the searches undertaken by the Respondent revealed otherwise - his employment files were littered with complaints about him, some serious. None was of a sexual nature. 29 There may be an entirely innocent explanation for these apparent inconsistencies. Nevertheless, as a consequence the Respondent has not had the opportunity to make inquiries of the Applicant's church and accordingly the Tribunal has no evidence one way or the other on whether that organisation had received any relevant complaint about the Applicant. In addition, these non-disclosures raise the possibility that the Applicant might not have been candid in other evidence given in these proceedings. 30 These non-disclosures take on particular relevance give the paucity of evidence provided by the Applicant about his conduct over the last 30 years. While he provided some evidence about his employment history, his account of his life outside work was scant and general in nature. The only evidence to corroborate his account was a short testimonial provided by a person who claims to have known him for the past 10 years. He stated, "[d]uring this time I have noted and in fact bought to his [the Applicant's] attention problems which he has noted, taken on board and remedied." It is not possible to discern from that reference what the "problems" are that the referee believes have now been remedied. Notably, the reference is silent about the Applicant's conduct with children and therefore is of limited assistance in this matter. 31 The Applicant wrote to the Tribunal on 2 August 2005 and offered an explanation for his inability to provide any evidence as directed. He explained that those people who knew him in the late 60's and early 70's would no longer recognise him and his current friends and acquaintances have no knowledge of his earlier convictions when he was known by a different name. (The Applicant changed his name by deed poll in 1984). 32 Given that the conduct which gave rise to the three index offences indicates, as Dr Lennings believes, that the Applicant might suffer from paedophilic tendencies, evidence about his conduct since 1973 takes on particular importance. Yet his evidence about his activities outside work is at best scant and entirely uncorroborated. The Respondent's enquiries, which included the Applicant's former employers and the Department of Community Services, have not revealed anything adverse about the Applicant. However, the non-disclosure about his church activities means that those enquiries are not complete. 33 In addition, there is no evidence that the Applicant might be able to call on any factors which might protect him against further reoffending. For example, there is no evidence that the Applicant is in a stable relationship; his employment history has been unstable; there is a long established pattern of him demonstrating a lack of impulse control; there is no evidence that he has developed any insight into the reason for his sexually inappropriate conduct; he has a history of alcohol abuse and, as diagnosed by Dr Lennings, appears to suffer from a psychiatric disorder. 34 It is notoriously difficult in situations such as this for an Applicant to prove the negative. A self-represented Applicant often finds the task of obtaining evidence which might assist their case to be difficult. It may be that, had the Applicant had the benefit of legal assistance, he would have been able to obtain evidence to corroborate his claims about his conduct over the past 30 years. 35 Nevertheless the Applicant carries the onus, on the Briginshaw standard, of proving he is not a real and material risk to children. It is not enough for an applicant convicted of an index offence, especially one which indicates a propensity to act in a sexually inappropriate way with children, to merely assert that he or she does not represent a risk to children and hope that the enquiries made by the Respondent do not contradict that claim. 36 In the absence of better evidence about the Applicant's conduct over the past 30 years, I could not be satisfied that the risk of him reoffending is not real and material. 37 Given this finding, it is not necessary for me to consider the Respondent's submissions that there is a real risk that the Applicant might physically or verbally abuse children if he were to return to child-related employment. 38 Accordingly, I have decided to dismiss the Application.
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.
PV
Commission for Children and Young People
Application is dismissed