Sunol v Children's Guardian - [2024] NSWCATAD 319 - NSWCATAD 2024 case summary — Zoe

NSWNSWCATAD

Sunol v Children's Guardian

[2024] NSWCATAD 319

NCAT Administrative and Equal Opportunity|2024-04-23

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2024-04-23

Source

Original judgment source is linked above.

Judgment (102 paragraphs)

[1]

Introduction and broad overview

In this case, the applicant sought administrative review under s 27(1) of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") of the decision of the Children's Guardian made on 3 August 2023 to refuse to grant him a working with children check clearance on the grounds that he poses a risk to the safety of children ("Refusal Decision").
Given the number, range and complexity of issues raised both substantively and procedurally, we set out our proposed approach to this administrative review.

[2]

Procedural issues

The applicant made numerous submissions asserting that there were procedural deficiencies throughout the course of the proceedings, including with respect to the respondent's filing of evidence. A number of submissions also asserted that the proceedings were 'stained' with administrative error on the part of the respondent. Those assertions heavily permeated the applicant's submissions which were labyrinthine in their content and arrangement. Some of those assertions were also threaded through the applicant's affidavit evidence.
Since the Tribunal's obligation is to determine the correct and preferable decision (as to whether the applicant poses a risk to the safety of children), it is important that the analysis underpinning its determination is clear, and not at risk of being clouded by other issues. At the same time, the Tribunal must adhere to the rules of natural justice and ensure procedural fairness is afforded to both parties.

[4]

Substantive issues

After receiving the applicant's application for a clearance on 4 March 2019, the Guardian advised him by letter of 25 July 2019 that, based on records that had been made available, a risk assessment pursuant would be undertaken pursuant to s 15 of the Act. The applicant was asked to provide information about his criminal record and to answer a number of questions relevant to the risk assessment. It was to be a number of years, almost four years in fact, before the applicant provided his response on 18 May 2023 (although, as part of an iterative process, there had been other correspondence between the parties).
During the course of the risk assessment, the Guardian became aware of a number of other matters of concern including the applicant's criminal record, complaints against him in the context of his work as a taxi driver, and his repeated conduct of publicly vilifying homosexuals which was found in multiple cases before the NCAT and the ACAT to be contrary to anti-discrimination laws. Also during the course of the risk assessment, the Guardian became aware of the applicant's comments against homosexuality which he uploaded onto YouTube. We understand those comments remain publicly available.
The respondent formed the view that, on the basis of the applicant's criminal and workplace records and his record of repeated conduct in making public comments against homosexuality, he poses a risk to the safety of gay and lesbian children who could suffer psychological and emotional harm if exposed to his views in the context of the applicant undertaking volunteer responsibilities in child-related work.
The respondent advised the applicant by letter of 15 June 2023 that it was proposed to refuse his application for clearance ("the Notice of Proposed Refusal"). The applicant was invited to provide, by 6 July 2023, any other information relevant to the respondent's assessment of his risk, before issuing the Refusal Decision.
The applicant did not provide further information, and sought instead to withdraw his application for clearance on 18 July 2023. However, that request came too late. The respondent had already formed the view that the applicant posed a likely risk to the safety of children and therefore the provisions of s 13AA(2) of the Act came into play. Section 13AA(2) specifically prohibits the Guardian from consenting to the withdrawal of an application for clearance where the Guardian considers there is a likely risk to the safety of children if the applicant engages in child-related work. Whilst not a substantive issue to be determined by this Tribunal, this development introduced a complexity into the matter that required clarification during the hearing, and in these Reasons.
Having not received any further information from the applicant to take into account on whether he posed a risk to children, the Guardian issued the Refusal Decision on 3 August 2023.
With respect to all matters of complaint against him, the applicant contended that none involve or concern children, directly or indirectly, and he asserted that he is not a risk to children.
As to his online comments about homosexuality, the applicant argued that his comments are harmless and that he does not have a pattern of online harassment of vulnerable communities. He denied that the LGBTQIA+ community is vulnerable and rejected the proposition that his homophobic statements on the internet could be linked with psychological harm to children or young people.
As to his criminal conviction for indecent exposure, the applicant argued that this occurred more than 47 years ago, with no further offences of that nature by him. He submitted that his criminal record for "use of carriage service offences" had been unduly inflated by the respondent and was, in the overall picture, trivial.
The applicant contended that complaints in the ACAT and NCAT for discrimination against homosexuality had been made repeatedly and systematically by five individuals acting in consortium against him with "anima and acrimony", and that he had been victimised as a result and had no option but to defend his religious convictions by making his views known publicly.
With respect to complaints against him when he worked as a taxi driver, the applicant asserted that the "anonymous" complaints were part of an unrelenting attack on him by those same five individuals.

[7]

Anonymisation issue

In directions made on 31 August 2023, Senior Member Mulvey made an order prohibiting the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in the proceedings.
In further directions made on 9 November 2023, Senior Member Mulvey vacated that previous non-publication order and directed that the name of the applicant would no longer be anonymised since the applicant sought to have his name identified with the proceeding. The reason for the applicant seeking to have his name identified, and not anonymised, is not made clear in the order. It appears that the applicant may have sought to "clear his name". That approach, of course, presupposed that the applicant would be granted a clearance, which is not the outcome of his application.
After concluding the hearing and closely assessing the evidence, in particular the applicant's own statements, it was clear to this Tribunal that the applicant held grave concern that if he was not granted a clearance, his opponents would publicly attack him, labelling him a paedophile. This concern appeared to loom large in the applicant's evidence.
As a result, this Tribunal issued its reasons to the parties on 30 October 2024 with the applicant's name anonymised by making an interim order to that effect, subject to any further written submissions that the parties may have wished to make.
As a corollary to the interim anonymisation order, a further interim order was made on 30 October 2024 (subject to any further written submissions that the parties may have wished to make) which vacated a previous order made by the Tribunal on 31 August 2023 under s 64(1)(a) of the Civil and Administrative Act 2013 prohibiting the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings.
Subject to any submissions by the parties, the Tribunal considered that the issue of anonymisation and non-publication orders could be determined 'on the papers', without the need for a hearing pursuant to s 50(2) of the CAT Act.
The applicant was given 14 days from the date of the Tribunal's reasons on 30 October 2024 to make any written submissions in relation to the anonymisation of his name and any non-publication orders, as well as a submission as to whether those matters could be determined without the need for a hearing.
The respondent was given 21 days from the date of the Tribunal's reasons on 30 October 2024 to make any written submissions in reply in relation to the anonymisation of the applicant's name and any non-publication orders, as well as a submission as to whether those matters could be determined without the need for a hearing.
The applicant did not respond to the Tribunal's direction to make submissions.
The respondent filed submissions on 20 November 2024, adopting a neutral position in relation to the anonymisation of the applicant's name and any non-publication order, and advised that the respondent considered that the matters could be determined without the need for a hearing.
In the absence of submissions or further evidence from the applicant as to the anonymisation of his name, we concluded that there had been no change of position with respect to his desire to have his name publicly broadcast with respect to this proceeding. We also concluded, in the absence of submissions from the applicant, that he had no objection to the matters being determined without the need for a hearing.
Accordingly, we made further orders on 25 November 2024 which appear as orders (4) and (5) in these Reasons.

[12]

Threshold matter 1: Calling of witnesses for cross-examination

The applicant initially sought to call Mr Poberezny-Lynch for cross-examination in relation to the matters contained in his affidavit dated 30 October 2023 which had been filed on behalf of the respondent in support of an application to dismiss the proceedings under s 55(1)(d) of the CAT Act. Mr Poberezny-Lynch objected to being required for cross-examination since the respondent's application to dismiss proceedings had been withdrawn. The Tribunal considered that Mr Poberezny-Lynch's Affidavit referred to procedural matters that were not relevant to the substantive issue to be determined. Accordingly, the affidavit was not read into evidence.
The applicant also sought to call the Children's Guardian for cross- examination. This was objected to on the grounds that the Refusal Decision is not under review in these proceedings. The application is a merits review of the application for clearance and not a review of the correctness (or otherwise) of the Refusal Decision. The applicant did not press this, and accepted that the Guardian would not be called to give evidence or be cross-examined.
In oral submissions, the applicant's legal representative objected to the applicant being called for cross-examination. The respondent argued the Guardian's right to test the applicant's evidence by calling and cross-examining him in relation to his affidavit evidence. The respondent foreshadowed that the cross-examination would be short and stated that the questions to be asked would not seek to cause harm to the applicant (which we understood to mean the questions would be sensitive to the applicant's disability and not seek to cause stress). The Tribunal considered that it would be procedurally unfair to not allow the applicant to be cross-examined on his affidavit evidence. No argument was advanced on behalf of the applicant that would lead the Tribunal to consider that, by being called, the applicant would suffer any procedural unfairness. Accordingly, the Tribunal ruled against the objection.
Despite initially objecting to the applicant being called for cross-examination, in subsequent oral submissions, the applicant's legal representative criticised the respondent for failing to put a question to the applicant in cross-examination about a comment made by the pastor in his church in a verbal reference provided to the Guardian on 19 January 2023. We note that the pastor's written and verbal references were both contained in the s 58 Bundle and the applicant had an opportunity to put on further evidence if he considered any matters contained in the reference required clarification. We find no procedural unfairness was caused to the applicant.

[13]

Threshold matter 2: Objections to evidence sought to be admitted

The applicant objected to the tender of the Second Meikle Affidavit annexing a USB device containing the YouTube Videos. The applicant also objected to the tender of the ABS Article annexed to the Third Meikle Affidavit, on the grounds that the material was filed after the date on which the respondent had been directed to file evidence (10 December 2023).
The respondent argued that the applicant's objection misunderstood the nature of the Tribunal's review which is administrative and inquisitorial, as opposed to being adversarial: Youseff v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [30]: "… Administrative review proceedings in NCAT are administrative and inquisitorial in nature, with no onus of proof on either the applicant or respondent."
It is important to note that the Tribunal determines matters (including evidential aspects) by reference to the statutes under which it is operating, or in considerations of natural justice or common sense, rather than in the technical rules relating to onus of proof developed by the courts: McDonald v Director of Social Security (1984) 1 FCR 354 at 356, (1984) 6 ALD 6 at [9]-[10] per Woodward J: "The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called "legal" and "evidential" aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue. The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" (AAT Act s 33(1)(c)). Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent."
The Act, the CAT Act and the ADR Act, set out a number of relevant provisions that assist in better understanding the inquisitorial nature of proceedings and the application of procedural rules where this Tribunal's administrative jurisdiction is exercised.
The "guiding principle" for the application of the CAT Act and the procedural rules to Tribunal proceedings is set out in s 36(1) of that Act, namely: "…to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
Under s 38(1) of the CAT Act, the Tribunal may determine its own procedure, and is to act with as little technicality and formality as possible. The provisions of s 38(4) relevantly provide: "(4) The Tribunal is to act with as little formality as the circumstances of the case permit, and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
Under s 63(1) of the ADR Act, the Tribunal must determine the "correct and preferable" decision (whether the applicant poses a real and appreciable risk to the safety of children), having regard to the material before it (which is not limited to the material before the Guardian).
Whilst neither party bears an onus of proof in relation to this application for review, the applicant has a statutory obligation to fully disclose to the Tribunal any matters relevant to the application: s 27(4) of the Act.
In determining the real issues in the proceedings, the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. A merits review allows the opportunity for a more intensive examination of the circumstances surrounding the decision being challenged (namely, the Refusal Decision) and this Tribunal has received information and submissions which, as noted above, is additional to those that were before the Guardian. Indeed, the Tribunal has an obligation to ensure that all relevant material is placed before it so as to enable it to determine all the relevant facts in issue. Section 38(6) relevantly provides: "38 Procedure of Tribunal generally … (6) The Tribunal- (a) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, …"
There is thus clearly a link between the inquisitorial nature of administrative review proceedings and the material considered to be relevant for the purpose of determining the facts in issue.

[14]

The Tribunal's previous orders

In written submissions, the applicant contended that an order made by Senior Member Mulvey on 1 February 2024 and an order made by Senior Member Dr J Lucy on 15 February 2024 refused the admission of further evidence by the respondent beyond 10 December 2024. Each of those orders contained notes which are reproduced below: Order made on 1 February 2024 by SM Mulvey "Notes: The respondent filed a late bundle of evidence on 25 January 2024 outside of the Tribunal's orders. The Applicant was not ready to commit to a further timetable until he has had time to consider that new material. The proceedings are adjourned for further directions." Order made on 15 February 2024 by SM Dr Lucy "Notes: The respondent requested an adjournment on the basis that the respondent wished to consider putting on expert evidence. There was no evidence in support of the request for an adjournment and no indication of why the request was being made at this late stage. In those circumstances, and noting that the respondent has had ample opportunity to adduce evidence, that request was refused."
The order made on 1 February 2024 listed the proceeding for further directions on 15 February 2024. The note in that order referred to the respondent's late filing of evidence on 25 January 2024. This was a reference to the Second Meikle Affidavit annexing the USB material. On our reading of the note, the applicant was to consider the new material before committing to a further timetable. The note in that order was not, as contended on behalf of the applicant, a rejection of the Second Meikle Affidavit annexing the YouTube Videos.
The orders made on 15 February 2024 set a further timetable for the filing of legal arguments and set the matter down for hearing on 22 April 2024 for 2 days. The note in those orders included a refusal to grant an adjournment to the respondent on the basis that the respondent wished to put on expert evidence. The respondent did not subsequently seek to file an expert report. The ABS Article filed on 11 April 2024 is not an expert report and was not tendered into evidence as such. The note in the orders made on 15 February 2024 cannot therefore be taken, or interpreted, to be a rejection of the ABS Article annexed to the Third Meikle Affidavit.

[16]

The ABS Article

The respondent has contended that the ABS Article is evidence of the causal relationship between, on the one hand, stigma, discrimination, bullying and exclusion and, on the other hand, poorer psychological and mental health in lesbian and gay people.
One of the real issues to be determined in this application concerns whether the applicant poses a risk to the safety of children who may suffer psychological harm because of the applicant's homophobic comments about gay and lesbian people, including young people. We consider the ABS Article to be relevant to determining that issue.
As noted above, the applicant's objection to the tendering of the ABS Article appears to be connected to the notation in the directions made on 15 February 2024 and we say this is an erroneous interpretation. In correspondence to the applicant's legal representative on 28 February 2024, the Guardian's legal representative advised that the Guardian would seek to tender the ABS Article and rely upon it. The Guardian's correspondence contended that the ABS Article provided evidence about the poor mental health of LGBTQ+ Australians and the causal role played by stigma, discrimination and bullying those poor mental health outcomes. The correspondence also noted that evidence of those matters had already been filed in the s 58 bundle and in exhibits to the First Meikle Affidavit filed on 5 December 2023. The applicant's criticism of the respondent and his legal representative for sending an "unsolicited email" to the applicant's legal representative with a copy of the ABS Article is, in our view, unwarranted.
Each party to proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle and to comply with directions and orders of the Tribunal: s 36(3) of the CAT Act. This includes complying with the Tribunal's timetable for the filing of evidence.
However, we consider the YouTube Videos and the ABS Article to be relevant material that assists in determining the real issues in this case. This, in our view, outweighs the requirement for the respondent's evidence to have been filed by 10 December 2023, particularly since the applicant was given time to file evidence in reply to the YouTube Videos, and elected to not do so. Further, the YouTube Videos are the applicant's own material (since he created them), and his objection to this material being put before the Tribunal cannot be sustained, particularly in light of his statutory duty to fully disclose all relevant material.
Appreciating the inquisitorial nature of the proceedings, the Tribunal needs to have all relevant material before it in order to determine the real issues in the proceeding, and apply the guiding principle of facilitating the just, quick and cheap resolution of those issues. Whilst ensuring that the rules of natural justice are applied and ensuring that procedural fairness is afforded to both parties, the Tribunal balances the requirement to act with as little formality as this case permits (in furtherance of the guiding principle), against orders made with respect to the dates for filing of material.
We cannot see any procedural unfairness resulting to the applicant by accepting the YouTube Videos and the ABS Article as evidence relevant to the real issues to be determined, and ruled accordingly.

[17]

Threshold matter 3: The Guardian's refusal to allow the applicant to withdraw his application for clearance

In this case, the applicant sought to withdraw his application for a clearance after receiving the respondent's Notice of Proposed Refusal. During the hearing, the applicant pressed this issue.
We clarify that the applicant was not seeking an order that he be permitted to withdraw his application for administrative review of the Refusal Decision.
Under s 13AA(1) of the Act, an application for clearance can be withdrawn at any time. However, an application for clearance can only be withdrawn with the consent of the Children's Guardian. If the Guardian considers there is a likely risk to the safety of children should the applicant engage in child-related work, then the Guardian must not consent to the withdrawal of an application: s 13AA(2) of the Act. The relevant provisions are set out below: 13AA Withdrawal of applications for clearances (1) An applicant may, with the consent of the Children's Guardian, withdraw an application for a working with children check clearance at any time. (2) The Children's Guardian must not consent to the withdrawal of an application for a clearance if the Children's Guardian considers there is a likely risk to the safety of children if the applicant engages in child-related work.
On 20 July 2023, the Guardian made a decision under s 13AA(2) to not allow the applicant to withdraw his application. At that stage of the risk assessment, the Guardian had formed the view (as evidenced by the Notice of Proposed Refusal) that there was a likely risk to the safety of children if the applicant was to engage in child-related work. The Guardian had given the applicant an opportunity to provide further information on the risk assessment before issuing the Refusal Decision, however, no further information had been provided.
Also at that point in time (20 July 2023), the applicant had provided his response of 18 May 2023 to the respondent's request for additional information in relation to his application for clearance. The applicant's response stated that while it was not his idea to apply for a clearance, he had been told by 'NewStart' to apply for one. He also stated that it was important to him that his application for clearance was successful and that having a clearance would give him "the opportunity to do voluntary work or teach Bible studies to children in my local church". Also at the time of the Guardian's decision to not allow the application for clearance to be withdrawn, the Guardian had been advised by the applicant that he was being tested for Parkinson's Disease.
The applicant then notified the Children's Guardian by email dated 28 July 2023 that his circumstances had changed, that he had been diagnosed with Parkinson's Disease and that he no longer had a need for a clearance. He requested a pause of six months before his application for clearance was determined by the Guardian, to allow the applicant time to consider issues that were important to him. This request for a "pause" may have been somehow connected to an order sought to "stay" the matter for six months, but this was not clarified by the applicant and was, in any event, not progressed as an option.
During the hearing, the applicant again raised the Guardian's decision to not allow him to withdraw his application for clearance as another matter to be considered by the Tribunal. The respondent contended that there had been no previous indication in the course of the proceedings before the Tribunal that the applicant would ask the Tribunal to set aside that decision made under s 13AA(2) of the Act.
It was submitted on behalf of the applicant that it was his prerogative to seek to withdraw his application. It was further submitted that the Guardian had made an administrative error in refusing to allow the application to be withdrawn. We acknowledge that an applicant can seek to withdraw an application for clearance but only before the Guardian decides the matter under s 13AA(2) of the Act. Once it is considered there is a likely risk to the safety of children if the applicant engages in child-related work, the Guardian must not consent to the requested withdrawal of an application for clearance.
The respondent contended that there had been no administrative error. At the point of considering the withdrawal request, on the information available, the Guardian formed the view that the applicant did not meet the criteria for a clearance and there was therefore a risk to the safety of children if he was to engage in child-related work.
The applicant's request for the Tribunal to order the respondent to allow the applicant to withdraw his application for clearance, is tantamount to asking the Tribunal to override s 13AA(2) of the Act which prohibits the Guardian from consenting to the withdrawal of an application where it is considered there is a likely risk to the safety of children if the applicant engages in child-related work. This includes in a volunteer or non-volunteer capacity.

[18]

Threshold matter 4: The Guardian's decision to conduct a risk assessment under s 15(3) of the Act

The applicant challenged the Guardian's decision to undertake a risk assessment, arguing that s 15(3) of the Act does not give the Children's Guardian an "unbridled discretion" to conduct an assessment. The applicant also asserted that the Guardian had taken irrelevant factors into account and had failed to consider the factors set out in s 15(4) adequately, or at all.
The application before the Tribunal is not to decide the lawfulness of the Guardian's decision to conduct a risk assessment. The issue for determination by the Tribunal is whether, applying the test in s 18(2) of the Act, it is satisfied that the applicant does not pose a risk to the safety of children.
Nonetheless, we address the applicant's assertion that the Guardian does not have power under s 15(3) to conduct a risk assessment of an applicant where that applicant is not subject to an assessment requirement under the Act. Section 14 relevantly provides: 14 Assessment requirements A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.
In this matter, there are no matters specified in Schedule 1 that apply to the applicant.
We turn then to the fundamental issue of the Guardian's discretion in s 15(3) of the Act to conduct a risk assessment. The relevant provisions in s 15 are set out below: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit (emphasis added.) the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may [emphasis added] consider the following- (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it 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 or of any other matters that caused the assessment 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 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. (4A) The Children's Guardian may determine an applicant or holder does not pose a risk to the safety of children only if the Children's Guardian is satisfied- (a) a reasonable person would allow the person's child to have direct contact with the applicant or holder- (i) while not directly supervised by another person, and (ii) while the applicant or holder was engaged in child-related work, and (b) the making of the determination is in the public interest. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
In Tilley v Children's Guardian [2015] NSWSC 1208 at [10], per Basten JA, Meagher JA and Leeming JA, submissions made by the Children's Guardian on the power to be exercised by the Tribunal s 15(3) were accepted by the Supreme Court of New South Wales: "[10] Although the phrase defined in s 14 is "assessment requirement", the relevant provisions refer to a person being "subject to an assessment requirement". Section 15 requires the Children's Guardian to carry out a "risk assessment" of a person who is "subject to an assessment requirement". Section 15(2) confers a power (apparently without obligation) to conduct a risk assessment with respect to "the holder of a clearance" in identified circumstances. That provision has no relevance for present purposes, except as part of the structure of the legislative scheme. Similarly, s 15(3) implicitly identifies a power to conduct a risk assessment in respect of an applicant even if subs (1) and (2) are not engaged. (emphasis added.) That provision was said by the respondent to assist in understanding the scheme as it applied to the applicant."
In the case before us, the applicant's submission did not expand upon the assertion that the Children's Guardian's discretion is not "unbridled".
The respondent argued that the words "do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant" in s 15(3), do not include a limitation that the exercise of power under that subsection is conditional upon satisfaction of ss 15(1) and 15(2). The respondent argued that to read into s15(3) a limitation on the exercise of the discretion is plainly contrary to the clear wording of the phrase "do not limit" in s 15(3) and would be inconsistent with the purpose of the Act. Further, the respondent argued that reading a limitation (which would be directly contradictory to the plain wording "do not limit") would result in the absurd outcome whereby the Guardian would be unable to refuse an application for a clearance if an applicant does not fall within either limb of ss (1) and (2).
We agree with the respondent's analysis. The wording in s 15(3) does not contain any qualifying circumstances, or exceptions. It is plainly worded and supports the object of the Act, to ensure the safety, welfare and well-being of children.
With respect to the applicant's submission that the respondent had failed to consider the considerations set out in s 15(4) adequately or at all, we note that the factors in s 15(4) are discretionary, arising from the use of the word "may". This is not the same as the factors in s 30(1) of the Act which the Tribunal must consider when determining an application.
The applicant's submission that the respondent failed to apply s 15 correctly or at all, resulting in a "flawed administrative decision" that "stained" the proceedings, is therefore not accepted.
In another line of argument, the applicant contended that the Guardian's letter of 25 July 2019 ("Risk Assessment Notice") advising him that a risk assessment would be undertaken pursuant to s 15 of the Act, failed to notify him of the subsections within s 15 that were relied upon for the exercise of the Guardian's discretion to conduct an assessment and the factors that may be taken into account. The applicant argued that the Risk Assessment Notice failed to refer specifically to s 15(3) of the Act. Further, he argued that the Notice of Proposed Refusal (15 June 2023) also failed to refer specifically to s 15(3) of the Act. The applicant pointed out that s 15(3) was only mentioned in the Refusal Decision (3 August 2023).
If we have understood the applicant's line of argument correctly, he contended that the Guardian's final decision is, or results in, an act of "manifest unreasonableness" where it is based upon an alleged ineffective Risk Assessment Notice, and that the applicant was therefore "caught by surprise" by the Refusal Decision.
The applicant also alleged that the exclusion of a reference to s 15(3) in the Notice of Proposed Refusal was "false and misleading" to the applicant. Additionally, he argued that he had been denied procedural fairness and natural justice. Further, the applicant asserted that, having been "caught by surprise", this was "tantamount to the perception of prejudice and bias".
As already noted above, s 15(3) states that s 15(1) and s 15(2) do not limit the circumstances in which the Guardian may conduct a risk assessment of an applicant. In this case, neither s 15(1) nor s (2) of the Act applied to the applicant's circumstances. The inclusion in the Risk Assessment Notice of a reference to s 15(3) is not necessary, since s 15(3) refers to sections that have no application to this applicant. Having said that, there would be no detriment if the Risk Assessment Notice attached the entirety of s 15.
The Notice of Risk Assessment annexed: 1. Frequently Asked Questions ("FAQs"); 2. a form of Statutory Declaration which the applicant was asked to complete and submit; 3. a copy of ss 15(4) and 15(4A) of the Act, setting out the factors that the Guardian may consider in conducting the assessment; 4. a form of reference (from an employer); and 5. a form of reference (from a professional).
The Risk Assessment Notice in the terms issued to the applicant is, in our view, both adequate and effective. In our view, an applicant's focus would likely, and reasonably, be on the factors to be taken into account when assessing the applicant's risk, rather than an academic argument as to whether the Guardian's discretion under s 15(3) is limited by s 15(1) and s 15(2) of the Act.
The applicant submitted that it would be reasonable for a "lay person", reading the Notice of Risk Assessment, to form an understanding that the FAQs would be based on the statutory criteria, and nothing more. The submission does not make clear why such an understanding would be evident, or reasonable. FAQs are questions of a general nature that are anticipated by applicants and are not specific to each applicant's particular circumstances. In any event, we disagree with that proposition, since there is nothing in the Notice of Risk Assessment to suggest that the Guardian was only interested in the applicant's response to the FAQs.
Indeed, the Notice of Risk Assessment clearly stated that the assessment would be based on the records identified in the notice as well as the seriousness of the applicant's total criminal record (emphasised in bold print and underlined in the notice itself) if applicable. The Notice described the "next step" as requiring the applicant to complete the Statutory Declaration and provide information to the Guardian about his conduct since the matters that triggered the assessment, why he considered the matters would not reoccur, his total record, and any other information relevant to the risk assessment. The instructions were quite clear. The matters to be disclosed (if relevant) in the Statutory Declaration were numbered 1 to 10, and were clearly articulated.
The applicant contended that "no fair minded reasonable person" on a reading of the Notice of Proposed Refusal would form a view that s 15(3) factors and discretions were relied upon. We have already dealt with the s 15(3) discretion above. As to the factors to be taken into account, the Notice of Proposed Refusal clearly stated that information obtained during the assessment was considered against the s 15(4) factors.
The argument that the applicant was "caught by surprise" when he received the Refusal Decision has no merit since he was already on notice of the factors in s 15(4) and s 15(4A) that may be taken into account when assessing his risk, since they were annexed to the Notice of Risk Assessment.
The assessment process was undertaken over an extended period of time (almost 4 years), giving the applicant ample time to understand the factors relevant to the risk assessment and for him to respond to the Guardian's request for information. We find no grounds for an assertion that the applicant was denied natural justice or procedural fairness, or that he could have been "caught by surprise" by the matters relied upon in the Refusal Decision. The assertion that the Guardian's final decision is, or results in, an act of "manifest unreasonableness" where it is based on an effective notice that a risk assessment would be conducted under s 15 of the Act, has no merit.
In our view, the Guardian's Risk Assessment Notice correctly and adequately cited the relevant provision, namely, s 15 of the Act, and put the applicant on notice of the factors that would be considered.
We have therefore dismissed the applicant's submissions concerning s 15(3) of the Act as having no merit.

[19]

Issue for the Tribunal's determination

As we have made clear, the fundamental decision to be made in this case is whether, applying the test in s 18(2) of the Act, the Tribunal is satisfied that the applicant does not pose a risk to the safety of children.
Under s 63(1) of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"), the Tribunal must determine the "correct and preferable" decision (i.e. whether the applicant poses a real and appreciable risk to the safety of children) with regard to the material before it, including material that may not have been before the respondent, and the applicable law: YG & GG v Minister for Community Services [2002] NSWCA 247 at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children's Guardian [2015] NSWCATAD 91 at [14].
Subsection 63(2) of the ADR Act allows the Tribunal, for the purpose of determining an application, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
In determining an application, understanding the effect of ss 63(1) and 63(2) of the ADR Act, the Tribunal must not simply "stand in the shoes" of an administrator. As explained in DYH v Public Guardian [2021] NSWCATAD 136 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."
The matter is heard de novo, with material before this Tribunal that was before the Guardian plus other material including affidavit evidence, submissions considered to be relevant and the applicant's oral evidence.
The Tribunal may make orders that include an order to affirm the Refusal Decision, or vary it, or set it aside and make a decision in substitution, or set it aside and remit the matter to the respondent for reconsideration in accordance with any directions or recommendations of the Tribunal: s 63(3) of the ADR Act. The relevant provision is set out below: "63 Determination of administrative review by Tribunal … (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

[20]

Family and general history

The applicant is 67 years of age, married, with three step-children and four step-grandchildren.
He is a member of an evangelical Pentecostal church and holds strong views on homosexuality because of his religious beliefs. He has made many statements about those views on social media which has attracted civil litigation against him for unlawful homosexual vilification.
The applicant was involved in a near fatal car accident in 1978, resulting in him being in a coma for three months and working in a sheltered workshop environment for two years. By his own account, he has remnants of a medically diagnosed MVA frontal lobe brain injury. He described his condition as like a developmental disability that affects his short term memory and, to some extent, his impulse control and judgment.
Despite his brain injury, the applicant pursued higher education, obtaining a Bachelor of Social Science in 1998 and Master of Commerce in 2004. Additionally, he has undertaken various certificate courses including courses in public relations, marketing and business administration.
As a result of his accident, he received a lump sum compensation and owns his own home, although we understand he has suffered bankruptcy.
Information on the applicant's work history is scant, although we know he was a Naval Officer on the Aircraft Carrier HMAS Melbourne early in his career. We also know he worked as a taxi driver, having been issued with a taxi driver authority on 6 August 2003. His taxi driver authority was suspended on 12 February 2009 pending a medical assessment and consideration of complaints against him. His driver authority was reinstated before finally being cancelled on 6 December 2013.
We understand that the applicant has not been engaged in paid work since that time although he appears to have participated in "work for the dole" activities involving "doing Newsletters for Charity organisations" during 2017. We note that, otherwise, he has pursued full-time university study for a number of years.
A reference from a pastor in the church where the applicant is a long-time member, confirmed that the applicant had provided services to the church in a volunteer capacity twice weekly, by running errands. The pastor confirmed that he had known the applicant for 40 years and that, more recently, he was only coming in (to the church) sporadically, as he was focusing on his health.

[21]

Application for working with children check clearance

The applicant applied for a volunteer clearance on 4 March 2019, nominating "residential Services" as the child-related sector. He subsequently clarified in a letter dated 18 May 2023 to the Guardian that he wanted a clearance for the "opportunity to do voluntary work or teach Bible studies to children in his local church".
On 25 July 2019, the (then) Children's Guardian advised the applicant that, pursuant to s 15 of the Act, she would be undertaking a risk assessment based on the records that had been made available and the seriousness of the applicant's total criminal record. The records identified an alleged "serious assault" in 2014 and a number of allegations of "use carriage service to menace/harass/offend" in 2019, 2017 and 2013. The Guardian's letter asked the applicant to complete a statutory declaration, outlining his criminal background. He was asked to provide answers to a number of questions relevant to the risk assessment.
On the same day, 25 July 2019, he emailed the Guardian, stating that he needed a clearance and that he wished to challenge the record concerning a "serious assault" as it was wrong, and he had no such record.
On 27 July 2019, he again emailed the Guardian, stating that all the charges were minor and had resulted from gay rights activists attacking him for 10-15 years due to civil actions through the Anti-Discrimination Board and the NCAT.
On 29 July 2019, the Guardian sent an email to the applicant, explaining that all charges against him, and not only convictions, were taken into account in a risk assessment. The Guardian's email stated that if he disagreed with the police charges listed in the Risk Assessment Notice, he could do so in writing within the statutory declaration that he had been asked to complete. The Guardian also advised that the 2014 record of "serious assault" was not related to a charge, but that the Guardian had received a notification regarding complaints made against the applicant during the course of his employment as a taxi driver. The applicant was required to respond by 25 October 2019, failing which his application would be closed.
In a letter dated 16 October 2019, the applicant advised the Guardian that it had not been his idea to apply for a clearance, but he was told to apply by "NewStart". At the time, he was enrolled in full-time study for his third university degree. It appears that, associated with the difficulty the applicant was experiencing in finding employment, it had been suggested that he volunteer to work with charitable organisations which might involve working with both adults and children.
In his letter, the applicant stated that police charges against him which had failed in court were of the utmost triviality based on vexatious complaints made by a homosexual rights activist. The applicant stated that homosexual rights activists filed complaints with the Anti-Discrimination Board at no cost and the complaints were referred to the NCAT for awards of compensation. He indicated that awards of money to successful litigants had caused him to be bankrupt. The applicant further stated that homosexual rights activists wanted to destroy him because of his religious conviction that opposes their 'agenda'.
The applicant's letter attached a copy of a letter he had written around 12 months previously, to "Workskil" (we understand this to be "Workskil Australia", a not-for-profit employment services provider). His letter to Workskil sought an alternative plan for generating his own income rather than hoping to find employment. The applicant believed he was being "demonised" in the media for his stance against homosexuality, and that as a result no employer would be interested in offering him work.
In email correspondence dated 30 June 2021 (almost two years later), the applicant enquired about his application. He stated that an error appeared to have been made in his application because he had no criminal record. He stated that he believed political activists from the LGBTQI activist groups who had been harassing him for 15-20 years may have made false and vexatious complaints against him to the Guardian.
The following day, on 1 July 2021, the Guardian responded by email, explaining that when assessing an applicant's criminal history, a number of matters are considered. They include convictions (spent or unspent), charges (whether heard, unheard or dismissed), juvenile records, workplace records and a person's pattern of behaviour that causes concern. The Guardian's email referred to previous correspondence between the parties in 2019 and again asked the applicant to complete the requested statutory declaration, and stated that a Risk Assessment Officer would be in touch to confirm allocation of his application and finalise the assessment.
Further email correspondence dated 16 and 28 September 2022 from the Guardian to the applicant noted that the additional information requested had not been provided. In both emails, the Guardian advised him that if he no longer required a clearance, he could request to withdraw his application, subject to review by the Guardian.
In a telephone conversation on 16 September 2022 with a Risk Assessor, the applicant advised that he was undergoing tests to determine whether he had Parkinson's Disease.
The applicant responded on 14 October 2022, referring to his previous 85-page submission dated 16 October 2019, and setting out a general chronology of correspondence between the parties. He foreshadowed that he intended to obtain legal advice about submitting a freedom of information request, to seek to obtain details and the source of what he asserted was false information relied upon by the Guardian.
Then, on 30 November 2022, the applicant advised the Guardian that he would ask for another reference to assist in the risk assessment.
On 4 May 2023, the Guardian advised the applicant that further information had been received from external agencies, and asked him to provide additional information (by 18 May 2023) in relation to a number of matters including: 1. his current circumstances, employment history over the last 10 years, whether he was receiving any counselling or NDIS (or other) support, and the reason why he sought a clearance; 2. his acquired brain injury and information around how he intended to manage his impulse control when working with children; 3. his version of events in relation to a record of "indecent exposure" in 1977, including what led to the charge, what he could have done differently and how he has mitigated concerns relating to alcohol misuse; 4. reports of his inappropriate behaviour which resulted in his taxi and bus licences having been revoked in 2012, and how the Guardian could be assured the behaviour would not re-occur if he worked in child-related employment; 5. his conduct as referred to in a number of ACAT and NCAT decisions from 2017, 2018, 2022 and 2023 concerning his alleged engagement in concerning behaviour by vilifying people from the LGBTQIA+ and religious communities online, after orders were made requiring him to cease engaging in that conduct. The applicant was also asked how the Guardian could be assured that his behaviours would not continue in child-related work which may include contact with the LGBTQIA+ community and other vulnerable children; 6. allegations that he had posted on his "Blog" on 18 April 2013 that he had been involved in sexual relations with an "underage girl" which his wife had knowledge of, as payment for the service of a taxi fare, and that he continued to meet with her sometimes. The applicant was asked to advise why he had posted this information about a child online and whether he had any other comments to make in relation to the allegation.
On 18 May 2023, the applicant advised the Guardian that he had been the subject of a stalking and hate campaign since 1998 by homosexual activists whom he suspected had directly or indirectly communicated lies about him to the Guardian. He advised that at the time when he applied for a clearance, he would impulsively send out many tweets every day, and that his tweets had unwisely contained personal information, including information that he had applied for a clearance. The applicant acknowledged that his tweeting was possibly an "addiction". He stated that his opponents' goal was to thwart his application and then use the failure to be granted a clearance to publicly attack him, saying he is a paedophile and a risk to children.
On 15 June 2023, the Guardian advised the applicant of the proposal to refuse his application for a clearance, and invited him to provide further information before a final decision would be made.
On 6 July 2023, the applicant responded to the Guardian's proposal to refuse to grant him a clearance. In addition to arguing that the Guardian had excessively weighted negative risk factors against him, he stated that he believed the Guardian had found his application difficult and challenging due to "contentious and controversial political considerations". The applicant advised the Guardian that he had been recently diagnosed with Parkinson's Disease. He offered to withdraw his application for clearance. As an alternative, he suggested that his application be left "in abeyance forever", deferred indefinitely. This, he argued, would mitigate against the risk of him being publicly vilified and victimised on the grounds that he had been refused a clearance.
By email dated 18 July 2023, the applicant formally asked to withdraw his application.
On 20 July 2023, as already noted, the Guardian refused to allow the applicant to withdraw his application on the grounds set out in s 13AA(2) of the Act.
On 25 July 2023, the applicant's email to the Guardian appears to state that he will not accept a "refusal" of a clearance, fearing that this would result in his name being included in a paedophile register in Australia. He asked the Guardian to reconsider the decision to not allow him to withdraw his original application for clearance.
Then, on 28 July 2023, the applicant advised the Guardian that his circumstances had changed and he no longer needed a clearance. He acknowledged that the Guardian had refused his request for his application to be indefinitely delayed and had refused his request to withdraw his application. He asked for a pause of six months before his application for clearance was determined by the Guardian, to allow him time to consider issues that were important to him.
On 3 August 2023, the Guardian advised the applicant that the risk assessment had been concluded and his application for clearance had been refused. The Guardian also determined there was insufficient reason for delaying the outcome, and denied his request for a 6-month delay.
On 21 August 2023, the applicant applied for administrative review of the Refusal Decision.

[30]

Meaning of "safety of children" includes their psychological safety

Whilst the Children and Young Persons (Care and Protection) Act 1998 ("CYP Act") has no direct application to the facts of this case, ss 23 and 227 of the CYP Act and relevant caselaw demonstrates that psychological harm is a recognised category of harm.
Section 23 of the CYP Act refers to a child's or young person's psychological needs as a relevant matter of concern when assessing if they are at risk of significant harm, and refers to a child or young person being at risk of suffering psychological harm in particular circumstances: "23 Child or young person at risk of significant harm (1) For the purposes of this Part and Part 3, a child or young person is at risk of significant harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent, of any one or more of the following circumstances- (a) the child's or young person's basic physical or psychological needs are not being met or are at risk of not being met, …"
Section 227 of the CYP Act relevantly provides: "227 Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in- ... (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or … is guilty of an offence."
In FKZ v Children's Guardian [2023] NSWCATAD 169 at [237], [259] and [271], the Tribunal gave weight to a number of separate instances in which the applicant had exposed a child to psychological harm.
In cases such as CJF v Children's Guardian (No 3) [2022] NSWCATAD 124 ("CJF"), at [184], CEJ v Children's Guardian [2016] NSWCATAD 164 ("CEJ"), at [78] and EJA v Children's Guardian [2021] NSWCATAD 202 ("EJA"), at [116], the Tribunal has been concerned by the possibility of psychological harm being caused to children, in assessing the risk posed by the applicants in those cases.

[37]

Second limb of the two-part test under s 30(1)(b) - the "public interest" test

The second limb of the two-part test is referred to as the "public interest" test. The notion of "public interest" was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]: "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."
Accordingly, in proceedings under the Act, the "public interest" must be considered in light of the paramount purpose of the Act, namely, to ensure the protection of children from sexual or physical harm: s 4 of the Act.
When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 ("ZZ") per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]: "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."
The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY No 2 at [75].
If the Tribunal is not satisfied that an applicant has met either of the first or second limbs in the two-part test, it is precluded from making an order enabling the applicant to work with children.

[38]

The approach to fact finding and the assessment of risk

The approach to fact finding and the assessment of risk in the context where the safety, welfare and well-being of children is paramount and the question to be addressed is whether a person poses a risk of harm to children, was explained in BKE at [33]: "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."
That approach to fact finding has been approved by the Court of Appeal in Tilley v Children's Guardian [2017] NSWCA 174 ("Tilley") at [34]-[45] and in CXZ per Simpson AJA at [57]: "The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. [emphasis in original] If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children."
Thus, relying upon the analysis in CXZ at [51], many cases will not lend themselves to definitive factual determination. Where an allegation is neither "well founded" nor "groundless", the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].
More recently, in Children's Guardian v CF1 [2020] NSWSC 1673, citing BKE, the Supreme Court of New South Wales, per Davies J at [11], articulated the fact finding task as being one of asking what findings can be made in relation to allegations when determining whether an applicant poses a real and appreciable risk to the safety of children. His Honour put forward the three possibilities: "[11] There are three possibilities. We may be satisfied that such the allegations have been established. Alternatively, we may be satisfied that the relevant conduct did not occur. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, we 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 the existence of a risk has not been disproven: Children's Guardian v CKF [2017] NSWSC 893 at [55]; BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]."
A positive finding by the Tribunal that alleged conduct has taken place will generally be determinative of an application: Office of the Children's Guardian v CFW [2016] NSWSC 1406 ("CFW") at [14]-[15], per Justice Harrison: "The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless"."
Clearly, however, it is the third possibility, where the Tribunal may not be satisfied that an allegation has been established but the circumstances surrounding a particular incident or course of conduct are such that the existence of a risk has not been disproven, that requires consideration in the context of the protective jurisdiction being exercised under the Act.
Further, in determining an application, the Tribunal is required to consider the "totality of the evidence": BKE at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84], and the "cumulative effect" of the matters before it: CYY No 2 at [69]-[71].

[40]

The applicant's case

The key arguments put forward in support of the applicant's case were that: 1. with respect to all matters of complaint against the applicant (as assembled in the s 58 Bundle), none involve or concern children, directly or indirectly; 2. the applicant does not have a pattern of online harassment against vulnerable communities; 3. the LGBTQIA+ community is not 'vulnerable', and there is no evidence to support such a categorisation; 4. the proposition, that the applicant's homophobic statements on the Internet could be linked with psychological harm to children, was fanciful and absurd; 5. with respect to his online comments on homosexuality, there is no "child complaint" or "child victim" and no evidence before the Children's Guardian that children have been directly harmed as a result of the applicant's conduct, and the respondent's case is theoretical and speculative; 6. with respect to his "indecent exposure" and "use of carriage service offences", these ought to be categorised at the lowest end of the punishment spectrum; 7. that with respect to complaints about the applicant's behaviour as a taxi driver and the cancellation of his taxi driver authority by the Roads and Maritime Services ("RMS"), these were part of an endless spiral of animosity towards him, (citing some 25 cases against him from 2005 - 2018 in the ADT and the NCAT); 8. that with respect to complaints against him in the ACAT and NCAT for discrimination due to the publication of his comments on the Internet against the practice of homosexuality: 1. the complaints are repeatedly and systematically made by five individuals (all adults) from the LGBTQI+ community acting in consortium against him with "anima and acrimony", and are not from disparate complainants; 2. further, as evidence of the acrimony between one of the key complainants ("GB") and the applicant, NSW Police have noted that the acrimonious atmosphere around allegations and counter-allegations between the two men must be taken into account when assessing anonymous allegations received against either party; 3. the applicant continues to resist, with just cause, what he regards as the onslaught of public attack and humiliation with vexation from those complainants. [Notes: In deciding this application for review, the Tribunal does not delve deeply into the discrimination complaints against the applicant, but acknowledges his submissions in relation to them for the purpose of his application for review, as set out above. In describing the relationship between the applicant and his opponents in proceedings in which the applicant was found to have vilified homosexuals, the applicant's submissions repeatedly use the term "anima", either alone or in a phrase "anima and acrimony". The context in which the term "anima" has been used, is unclear. In the absence of explanation as to its linguistic origin, the term appears to be eclectic, although we understand it is intended to convey the same meaning as "animosity". For that reason, we have taken the term "anima" to be a reference to the alleged long-standing anger and rancour between the applicant and his opponents in those anti-discrimination proceedings.]

[41]

The respondent's case

The key arguments relied upon by the respondent were that: 1. for the purpose of the Act, the safety of children includes their psychological safety; 2. gay and lesbian young people are vulnerable and psychologically disadvantaged, which must be taken into account when assessing the risk posed by the applicant to the safety of children; 3. the documented evidence before the Tribunal is that publicly made homophobic comments pose a risk to the psychological and physical safety of lesbian and gay children (such as poorer mental health outcomes, depression, suicidal ideation and self-harm); 4. the applicant poses a risk to the psychological safety of lesbian and gay children because of his public homophobic comments which are publicly available on his YouTube Channel. The comments use derogatory language which demonstrates prejudice against lesbian and gay people. They include pronouncements that the applicant will not recant his comments, and are evidence of his entrenched homophobia as also demonstrated by multiple anti-discrimination cases in the Tribunal involving the applicant. To the extent that the applicant denies an intention to be prejudicial or homophobic, such an intention is irrelevant given the substance and extent of his comments; 5. the applicant is impulsive and disinhibited, as a result of a medically diagnosed MVA frontal lobe injury in 1978, and is likely to continue to repeat his offending conduct; 6. the applicant does not have insight into the harmful effect of his behaviour on gay and lesbian children and denies that LGBTQIA+ people are "vulnerable"; 7. the applicant may fail to act protectively towards a gay or lesbian child since: 1. he has an incorrect understanding of the definition of "child" for the purpose of the Act; 2. he has a discriminatory approach towards lesbian and gay people and a clearance cannot be granted on the condition that the applicant would only work with heterosexual children; 3. he would not know what to do if required to work with a lesbian or gay child; 4. his criminal history and allegations against him demonstrate he has a history of engaging in inappropriate, sexual behaviour towards women and a female child, having regard to his conviction for indecent exposure in 1977; a report in 2010 that he, when working as a taxi driver, approached staff at a nightclub and asked if they had any "intoxicated females who needed a taxi"; and an allegation that the applicant blogged about having sex with a underage Aboriginal girl in exchange for the taxi fare; 1. the applicant has a history of non-compliance with Tribunal orders which suggests he may be unable, or unwilling, to follow lawful directions from authorities or a supervisor in the context of the workplace; 2. the "reasonable person" test is not satisfied (noting that the Tribunal found he was not a fit and proper person to hold a taxi driver authority because of a number of complaints made by members of the public about his conduct); 3. the "public interest" test is not satisfied since the primary consideration should be the safety welfare and wellbeing of children, and there is no evidence that the applicant needs a clearance.

[43]

Reason for clearance

Perhaps because of the period of time during which the risk assessment was conducted, the applicant's position on both why, and whether, he needed a clearance, has changed significantly.
Initially, he applied for clearance as a volunteer, with the possibility of engaging with charitable organisations, to work with both adults and children. Nominating "residential services" on his application, he subsequently expanded his reason for clearance to include possibly teaching Bible studies to children in his church.
Subsequently, in legal argument before this Tribunal, the applicant contended (somewhat obliquely, in our view) that the 5 year ban accompanying the refusal of his clearance operated to render his driving career to be over.
However, the applicant's work as a driver (non-voluntary) was never put forward as a reason for needing a clearance. Moreover, the applicant's taxi driver authority had already been cancelled in 2014.
Then, in oral submissions (and confirmed in his oral evidence), the applicant contended that his working days are over and he does not intend to re-apply, and that there is therefore no utility in affirming or upholding the decision to refuse him a clearance. This argument, however, contradicts his complaint that the five year ban accompanying the refusal of his clearance, put an end to his working life.
We accept that the applicant's circumstances have changed over time and that his medical condition now heavily impacts upon his future planning. Nonetheless, in this case, it was always understood that the applicant's request for clearance was in the capacity of a volunteer, and not as a paid employee.
Setting aside those arguments that have caused confusion as to the reason for seeking clearance, we have determined this review on the basis of the applicant's desire to undertake volunteer work, potentially teaching Bible studies to children and young people in his church.
It is important to note that clearances are not issued with restrictions or made subject to conditions. It is not possible, for example, to grant the applicant a clearance on the condition that he refrains from making public homophobic statements or that his clearance would be on the condition that he only works with heterosexual children.

[44]

Applicant's oral evidence at the hearing

In response to a question put to him, as to whether he believed the Guardian's decision to refuse to grant him a clearance was because of biased caselaw and political correctness by LGBTQIA+ members, the applicant answered "yes".
In response to questions put to him, that he did not consider that LGBTQIA+ persons were a vulnerable community and that there was no evidence that gay and lesbian people are vulnerable, he also answered "yes".
When it was put to him that he believes his comments on homosexuality are harmless, the applicant agreed that that was correct.
When asked whether he believed a 17 year old is not a child, he said that legally, they are a child but that in 12 months' time, they are not a child.
The applicant said that if granted a clearance, he did not think he would have contact with children. When asked what he would do if he was required to work with gay and lesbian children, he said that he would mention nothing about gay and lesbian people.
The applicant was questioned about the answers he had provided during the application process (on 16 September 2022). He had been asked what would happen if he came across a child or young person who identified as part of the LGBT community or was gender-diverse. He said that he would speak to his supervisor and request not to work with that child. He had been asked what would happen if no one else was available to approach to speak with the child or young person, and said that he wouldn't know what to do in that instance. However, when asked again, under cross-examination, about what he would do, the applicant said that he would work with that child.
Under re-examination, the applicant said that he was retired, receiving a pension, and attending university, and had wanted to withdraw his application for clearance or keep it in abeyance.
In response to a question as to whether he was aware of the legal definition regarding the age of a child, the applicant said that he was aware, and did not elaborate further on his understanding of the term.
When asked about his medical condition, he said that he had been involved in a car accident in 1978 and had experienced lots of problems as a result, and that he had recently been diagnosed with Parkinson's Disease. He said that he had been a professional taxi driver but had recently experienced a collapse when getting off a bus, and had handed in his personal driver's licence.
The applicant said that his working days were over and he might do academic work.
In response to a question about what purpose a clearance refusal would serve, the applicant said that if he went overseas, not having a clearance could hinder his passage through Immigration.
When asked if he intended to apply again for a clearance, he said he had no further need for a clearance.

[55]

The applicant's statements on YouTube Videos

The applicant's statements, which we understand were uploaded onto his platform on YouTube in 2015 and 2016, remain publicly available and accessible, and are thus considered to be current.
Drawing from the Aide Memoire provided by the respondent, we set out below a range of the applicant's statements on YouTube videos: "Same sex marriage could lead into bestiality and also paedophilia and also things such as brothers and sisters having incest." "Same sex marriage is … literally mutual masturbation between two people of the same sex … it also generates paedophiles through this event." "From now on I'll talk about homophobia, and how homophobia is a good thing, not a bad thing. People have homophobia to protect themselves from paedophiles and other forms of criminals." "Same sex marriage equals child paedophilia … I will not change on the issue. Same sex marriage equals child paedophilia." "Homosexuality to me is a behavioural disorder brought on by the social conditioning of a person's lifestyle … it is not an inherent right, it is a want…Homophobia means nothing …". "Gay marriage is two poofters getting married." "It is impossible for two men or two women to love one another in a sexual way, if it is done, people have a psycho-disorder." "If I'm called homophobic, I'm bloody proud to be homophobic … it doesn't hurt anyone." "I'm willing to openly state and blatantly push that I'm homophobic and proud of it … I will not change … Willing to incite other people to do it too." "There's nothing wrong being homophobic … I'm only too happy to be homophobic, and encourage others to do the same." "Homophobia is not hate speech … it is to reject sin … I say yes to homophobia, yes we should be a homophobe. We should by all means be labelled homophobe and be proud to be labelled a homophobia. I am a happy little homophobe." "The whole of Australia should become homophobic … this is a call to Australia … to say yes to homophobia." "Full scale all out open jihad against fags … I will remain a homophobe for the rest of my life." "When it comes to sexuality, I am definitely a bigot. A homophobic bigot. That is what I revel in and that is what I recommend for everyone." "All paedophiles come through the deviant lifestyle of those in same sex marriage." "Same sex marriage is equivalent to same sex child paedophile rights." "Same sex marriage is mutual masturbation coupled with equal rights for paedophilia." "Paedophilia is rampant amongst the homosexual community. I refuse to accept anything else. I will not accept anything else." "Child pornography and homosexuality go together." "50, 60, 70% of the homosexual community are involved in child pornography." "Same sex marriage represents child paedophilia in marriage." "I am a homophobic bigot and I revel in it." "It is not natural to be homosexual." "The probability of child paedophilia is much greater amongst homosexuals than heterosexual groups." "There is more paedophilia amongst homosexuals."

[57]

Tribunal's analysis and findings

As already noted in our summary of the applicable legislation and legal principles, psychological harm is a recognised category of harm which we take into account when assessing the risk posed by the applicant: CJF at [184].
We accept the findings of the LGBTIQA+ Health Australia Report, the La Trobe University Report and the ABS Article as probative evidence that gay and lesbian people are vulnerable people who experience poorer health and wellbeing outcomes, as well as suicidal ideation resulting from experiencing stigma, discrimination, harassment and verbal abuse. The statistics cited in the reports and article are compelling, demonstrating that perceived discrimination is associated with increased depressive symptoms, and accounts for an elevated risk of self-harm in gay and lesbian young people.
The applicant's comments patently and blatantly vilify homosexuals, and we find them to be verbally abusive. The content of the material, the manner in which the content is delivered and the volume of material is harassing and bullying to the LGBTQIA+ community and, as a result, poses a risk to the safety of children who may be exposed to it.
The applicant states, in unequivocal terms, that he is proud to be homophobic. His comments are not subtle. They do not deal with trivial matters, but concern issues of serious psychosocial consequence. The language used is aggressive and highly offensive, declaring homosexual people to be wicked and evil, labelling them as child molesters and paedophiles, and equating homosexuality with bestiality and incest. The applicant uses derogatory terms such as "faggots", "poofs" and "poofters" to describe homosexuals. His comments portray gay and lesbian people as being psychologically unbalanced and immoral. He accuses them of engaging in criminal behaviour.
The applicant's oral evidence that his online comments are harmless demonstrates a lack of knowledge on his part about the recognised research into the harmful effect of homophobic comments which create a hostile and stressful social environment for gay and lesbian people, as well as a lack of insight into his behaviour and the impact it has upon gay and lesbian people. However, the applicant's own acknowledgment that his words may have been "injudicious", demonstrates some recognition on his part that they were ill-judged.
It is apparent, from the applicant's online statements, that his homophobic views are entrenched. He regards his reputation as being a "homophobic bigot" with pride, and declares that he will never, ever change his views. It is clear that he has no intention of withdrawing from his views and that he has every intention of continuing to express them and, indeed, inciting others to share them. We therefore also find that it is highly likely that the applicant will continue to express his homophobic views, and attempt to incite others to do likewise.
Further evidence of the entrenched nature of the applicant's behaviour is demonstrated by the multiple anti-discrimination cases involving him in cases from 2005 to 2023. The applicant has been found by the NCAT and the ACT Civil and Administrative Tribunal to have engaged in numerous instances of homosexual vilification contrary to law.
We find that the applicant does pose a real and appreciable risk to the psychological safety of gay and lesbian children who may encounter the applicant's homophobic views in the context of child-related employment, taking into account: 1. the evidence establishing that a disproportionate number of gay and lesbian young people suffer poorer mental health as a direct result of experiencing stigma and abuse on the basis of their homosexuality; 2. the applicant's expressed intention to continue to make his homophobic comments; 3. his expressed desire to teach Bible studies to children, if he is given a clearance.
We regard the applicant's ongoing conduct as very serious, and have therefore given a substantial amount of weight to this in our assessment of his risk.

[66]

Tribunal's analysis and finding

The possibility that the applicant may have sexually assaulted a female child is clearly at the higher end of seriousness.
The possibility that the perpetrator of such an offence would then admit to the crime in an online blog is, however, implausible. As suggested by the applicant in his response to the Guardian, the timing of the alleged creation of the blog, several years after the alleged incident, also defies explanation.
However, the applicant's contention that the blog was created by his serial opponents is not supported by any evidence. We therefore disregard the submission that the blog demonstrates the applicant was the victim of systemic and coordinated complaint processes by the serial complainants.
The respondent's submission that, in the absence of explaining how anyone else knew about the relationship between himself and the named girl, it is more likely that the applicant did post the blog, is however not supported by evidence.
Turning to the substance of the blog and the applicant's response to the Guardian, it is not clear whether his use of the word "disinformation" is a reference to the act of creating the blog or the alleged act of having sexual relations with an underage girl, or both. Whilst we find the applicant's response to be somewhat obtuse, in light of his expressed disgust that such an allegation would be made about him, we accept that his description of the matter as being "disinformation" is a rejection of the allegation that he engaged in sexual activity with the named girl.
In the absence of credible evidence that the applicant created the blog, or that he engaged in the conduct alleged in the blog, and having regard to the inherent improbability that he would create a blog about such highly inappropriate conduct, leads us to conclude that the allegation has no basis. Accordingly, we have not given any weight to the allegation in assessing his risk.
However, the applicant's assertion that a 17 year old is not a child, is a separate matter that does cause concern because he appears to not understand the distinction between a young person who is under the age of 18, and a person who has reached that age. His oral evidence on this was also not convincing. He appears to consider a 17 year old to be an adult since they are approaching the age of 18. He does not appear to recognise the vulnerability of a young person under the age of 18. This leads us to conclude that he may not act protectively towards young people who have not yet turned 18.
We accept the respondent's submission that the applicant's response to the Guardian demonstrates a lack of understanding of the regulatory scheme created by the Act and casts doubt on his ability to comply with the scheme. This adds to the risk that he poses to the safety of children.
We have given this concern a moderate amount of weight against the applicant in assessing whether he poses a risk to the safety of children.

[67]

Complaints by taxi passengers resulting in loss of licence (2014)

On 24 September 2014, the Tribunal affirmed the decision of RMS to refuse the applicant a bus driver authority and to cancel his taxi driver authority.
Between 2005 and 2012, a number of complaints were received by the RMS about the applicant's conduct as a taxi driver. Of the seventeen complaints received, six asserted that the applicant had engaged in "improper behaviour" or "inappropriate and offensive behaviour". Another four of the complaints related to driving in an unsafe manner, and three complaints asserted that he failed to provide reasonable assistance to the customer.
The Tribunal found that the applicant did not substantially contradict the fact of a number of complaints from passengers about his conduct as a taxi driver. However, in his letter of 18 May 2023 to the Guardian, he asserted that political activists had orchestrated false anonymous complaints against him to the taxi authority. He asserted that this was a campaign to take away his livelihood as a taxi driver, but provided no objective evidence of this.
Before issuing an authority to a person to drive a bus or a taxi, the RMS must be satisfied that the person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle.
The RMS contended that, to be of good repute and in all respects a fit and proper person to drive a public passenger vehicle, the community must have confidence that a driver would behave appropriately at all times and comply with the rules and regulations governing public passenger transport. In support of its argument, the RMS provided extensive files in its s 58 documents that included matters relating to the applicant's engagement in homosexual vilification contrary to the Anti-Discrimination Act 1977. At [29] the Tribunal noted: "[29] …Although he had been required by the Tribunal to apologise for his behaviour and to desist from publishing homosexuality vilifying material he had continued to do so and had been subject to further complaints against him in the Administrative Decisions Tribunal and, during 2014, in NCAT. At hearing, the RMS relied upon [the applicant's] failure to comply with the decisions of the Tribunal as evidence of his bad repute and also a lack of fitness and propriety. This behaviour demonstrated that he was unable to comply with the directions of authority. Further, his undertakings in relation to his future behaviour could not be relied upon."
The Tribunal found that the applicant: 1. had been the subject of findings before the ADT and the NCAT in relation to homosexual vilification contrary to the Anti-Discrimination Act; 2. had given apologies and made undertakings not to repeat the vilifying behaviour - but had in fact repeated the behaviour; 3. had been ordered by the ADT not to repeat vilifying behaviour - but has repeated the behaviour, prompting further findings by the ADT and NCAT.
The Tribunal found, at [68], that the applicant's behaviour in continuing to engage in homosexual vilification, even after he had been ordered to desist by the ADT and NCAT, was very serious. The Tribunal considered that his behaviour diminished his reputation in the community since he had repeatedly ignored the law.
The Tribunal concluded that the applicant did not take responsibility for his errors and tended to blame others for the difficulties he found himself in, asserting that he had been 'framed'.

[84]

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

In assessing the likelihood of any repetitive offending conduct, this Tribunal does not attempt to make a psychological evaluation. We simply observe the applicant's repeated offending conduct, if not arrested, to be an indication of his likely future behaviour.
By the applicant's own pronouncements, he intends to continue to speak against homosexuality, as evidenced by the following statement on same sex marriage (which we understand was uploaded onto YouTube in 2015): "I will never accept this, never ever will accept it, I will speak against it, and speak against issues on it, all of the time. Philosophically, it is not on.": [Ref Video 2 heard between 1:58 and 2:1 on Video 2 in 2015 on the USB drive tendered in evidence in the s 58 Bundle.]
In submissions dated 5 June 2019 to the Local Court in connection with a 'breach of bond' charge against him (relating to his "use of carriage service to menace/harass/offend" offence on 9 January 2017), the applicant explained his lack of impulse control difficulty. He stated that he had uploaded a video clip to his YouTube channel after being triggered by his "uncontrollable anger" and his "lack of impulse control due to medically diagnosed remnants of MVA frontal lobe brain injury". In those submissions, he also stated that his brain injury had badly affected his memory function.
In his letter to the Guardian on 16 October 2019, the applicant justified his comments on social media (and we understand his use of the term "social media" to be in the broader sense, not limited to the YouTube Videos) as perhaps "injudicious" but necessary to defend himself. It is evident that he sees himself as a victim, stating: "I am constantly under attack. I have done nothing wrong apart from maybe some injudicious words on social media. I have no option to defend myself. The homosexual rights activists are determined to use me to make case-law and they want to destroy me because of my religious conviction that opposes their agenda."
In his letter of 18 May 2023 to the Guardian, the applicant acknowledged that when he first applied for clearance in 2019, he "impulsively" sent out many tweets every day. He suggested that it may have been an "addiction". He also contended that the reference to "impulse control" only applied to his past tweeting habits. He said that he now uses his twitter account in a more restrained manner.
The repetitive nature of the applicant's conduct by engaging in homosexual vilification and harassing behaviour increases the risk of it continuing to reoccur. The applicant's entrenched views on homosexuality (as evidenced by the number of actions against him in the ACAT and NCAT), increases the likelihood that the applicant will continue to voice his comments and this adds to the risk. No objective evidence has been put before us that the applicant has managed to bring his impulsiveness under control.
In a written submission on behalf of the applicant in these proceedings, it was asserted that his "prevailing brain damage condition", exacerbated by complaints against him in discrimination matters, had "unhinged" and "destabilised" the applicant to the point of distraction during his work as a taxi driver. Another submission on behalf of the applicant stated that his stability had been profoundly impacted by the prolonged provocation upon him. No objective evidence has been put before us that the applicant no longer suffers from being "unhinged" or "destablised", particularly since he is still engaged in defending complaints against him for homosexual vilification.
In our view, as previously noted, there is no prospect that the applicant will desist from making homophobic statements online. The risk that he poses to the psychological and emotional safety of gay and lesbian children remains unmitigated.

[93]

Causal link between stigma/abuse and poor mental health in LGB people

The reports and article provide unequivocal evidence of the causal relationship between stigma and discrimination on one hand, and poorer psychological and mental health in gay and lesbian young people, on the other hand. The results demonstrate that young people who experience homophobic abuse are more likely than the normal population to report self-harm and feel less safe in a range of environments, and are therefore vulnerable.
In this matter, it is the respondent's past and continuing conduct to speak publicly and vehemently against homosexuality that gives the greatest concern for risk, in circumstances where he has expressed a desire to work in a volunteer capacity teaching Bible studies to children.
The applicant's public homophobic comments are verbally abusive towards gay and lesbian people, including young people. They incite hatred towards homosexuals and describe them in derogatory terms. They pose a risk to the psychological and mental health of gay and lesbian young people under the age of 18 if those people were to be exposed to the applicant's views in an environment where, armed with a clearance, he undertakes volunteer work such as teaching bible classes in a church. The applicant has stated that his online comments are harmless, demonstrating that he has no insight into the negative impact that his comments have on the psychological safety of gay and lesbian young people.
The applicant denies an intention to cause harm, and has suggested that his comments should be ignored. In 2017, he acknowledged that he suffers from "uncontrollable anger", stating: "I do not intend to write menacing, harassing or offensive material at all. Although sometimes when I am angry I express that anger but it is best interpreted as justified anger and ignored." The difficulty with the applicant's self-analysis, is that he fails to consider the effect of his angry comments, expressed with the utmost intensity and venom against homosexuals.
The causal link between homophobia and mental ill-health among gay and lesbian children does not depend on the subjective intention of the person making homophobic comments. The essential consideration is that the comments are homophobic, and therefore the causal link is established.
We find that the risk of psychological harm to gay and lesbian young people who may encounter the applicant's homophobic views in the context of him being given a clearance and working as a volunteer in child-related employment, is real and appreciable, and not merely fanciful or theoretical.

[95]

Lack of understanding of the applicable law

From the material before us, it is apparent that from early in his adult life, the applicant's interactions with people and social/political systems have been through the lens of a significant brain injury. In making this observation, we do not doubt or dismiss lightly the fact that he has completed university degrees and other courses, demonstrating his cognitive ability.
However, it was apparent from his oral evidence that the applicant lacks understanding of the regulatory scheme under which clearances are issued. His statements on the legal meaning of "child" with respect to young people who have not turned 18, was ambivalent. Our concern about the applicant's apparent incorrect understanding of the legal meaning is increased because of his explanation about the age of the underage girl referred to in the alleged blog. We are not persuaded that he understands that a person who is 17 or who may be approaching the age of 18, is still a child under the law.
Further, his responses to questions on how he would interact with gay and lesbian children were equivocal. Since the applicant rejects the proposition that gay and lesbian young people are vulnerable, we cannot be satisfied that he would act protectively towards them. If he engaged in work for a church or charitable organisation as a volunteer, and made statements such as those he has repeatedly made, and those statements are heard by children who identify as homosexual, it could cause psychological and emotional harm to them.
The applicant held an incorrect view that, if not granted a clearance, his name would be included on a 'paedophile' register that may be accessed by various authorities and the general public. He also held an erroneous view, if he sought to travel overseas, that not being granted a clearance may impede his passage through immigration.
This demonstrated lack of understanding of the law leads us to conclude that we cannot be confident he will comply with the law.
Further, his demonstrated record of non-compliance with Tribunal and Court orders demonstrates a lack of respect for the law, and increases the concern that he may not comply with it, which increases the risk that he poses.

Parties

Applicant/Plaintiff:

Sunol

Respondent/Defendant:

Children's Guardian

Legislation Cited (6)

Child Protection (Working with Children) Act 2012(NSW)

Administrative Decisions Review Act 1997(NSW)

Children and Young Persons (Care and Protection) Act 1998(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Crimes Act 1900(NSW)

Crimes Act 1914(Cth)

Cases Cited (34)

(No 3) [2022] NSWCATAD 124 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Commissioner for Children and Young People v IK [2005] NSWSC 1136 CRG v Children's Guardian [2017] NSWCATAD 295 CTE v Children's Guardian [2018] NSWCATAD 28 CXZ v Children's Guardian [2020] NSWCA 338 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 DAI v Children's Guardian [2017] NSWCATAD 308 DGS v Children's Guardian [2018] NSWCATAD 302 Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 DYH v Public Guardian [2021] NSWCATAD 136 EJA v Children's Guardian [2021] NSWCATAD 202 FKZ v Children's Guardian [2023] NSWCATAD 169 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 Liang v University of Technology, Sydney [2018] NSWCTAP 285 McDonald v Guardianship and Administration Board [1993] VR 521 McDonald v Director of Social Security (1984) 1 FCR 354, (1984) 6 ALD 6 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Smith v Commissioner of Police [2014] NSWCATAD 184 Tilley v Children's Guardian [2015] NSWSC 1208 Tilley v Children's Guardian [2017] NSWCA 174 VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 YG & GG v Minister for Community Services [2002] NSWCA 247 Youseff v NSW Legal Services Commissioner [2020] NSWCATOD 85 ZZ v Secretary, Department of Justice [2013] VSC 267 Texts Cited: None cited Category: Principal judgment Parties: John Christopher Sunol (Applicant) Children's Guardian (Respondent) Representation: Solicitors: Robert Balzola and Associates (Applicant) Crown Solicitor (Respondent) File Number(s): 2023/00260551 Publication restriction: Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of matters contained in the report of the Consultant and Forensic Psychiatrist filed in relation to these proceedings, is prohibited.

[2013] VCAT 789

[2013] VSC 267

(1997) 48 NSWLR 430

(1938) 60 CLR 336

(2008) 235 CLR 125

(2009) 240 CLR 162

(1984) 1 FCR 354