AZY v Children's Guardian
[2013] NSWADT 301
•22 November 2013
Administrative Decisions Tribunal
New South Wales
Case Title: AZY v Children's Guardian Medium Neutral Citation: [2013] NSWADT 301 Hearing Date(s): 22 November 2013 Decision Date: 22 November 2013 Jurisdiction: Community Services Division Before: Hon G Mullane, Judicial Member Decision: 1. The Tribunal declares that AZY is not to be treated as a disqualified person for purposes of the Child Protection (Working With Children) Act, 2012 in respect of the offence of "Assault with Act of Indecency" under the Crimes Act, 1900, S.61L for which he was convicted at Bankstown Local Court in 2002.
2. The Children's Guardian must grant AZY a Working With Children Clearance.Catchwords: Working With Children - disqualifying conviction - Enabling Order Legislation Cited: Child Protection (Working With Children) Act, 2012
Adoption Act, 2000
Child Protection (Prohibited Employment) Act 1998Cases Cited: Commission for Children and Young People -v- V, [2002] NSWSC 949 Category: Principal judgment Parties: AZY (Applicant)
Children's Guardian (Respondent)Representation - Counsel: Counsel - D Ward (Respondent ) - Solicitors: AZY (Applicant in person)
Crown Solicitor's Office (Respondent)File Number(s): 134024 Publication Restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies
REASONS FOR DECISION
INTRODUCTION
On 4 May 2001 a vehicle belonging to the Applicant was involved in a motor vehicle accident. Police attended his home and arrested him for the purpose of a blood and urine test. He was accompanied by a friend. They had both been drinking alcohol. The Police took him to Bankstown Hospital for the test. When he walking into the Hospital, he was following one of the officers, a female. He pinched the female police officer on a buttock. He was charged with the offence of "Assault with Act of Indecency" and when the matter came to Court on 26 September 2002, he pleaded guilty and was convicted and sentenced to 150 hours of community service. He appealed against the severity of the sentence and on 21 October 2002, the District Court at Parramatta substituted for the sentence a Bond to be of good behaviour for 12 months with supervision by the NSW Probation Service.
The Applicant has a niece who is 10 years of age. The niece was reared by her maternal grandparents, the parents of the Applicant. Because of declining capacity on the part of the grandparents, the niece was placed in the care of Barnado's Homes temporarily and on 11 November 2011 orders were made in the Bidura Children's Court allocating parental responsibility for the child to the Minister, Family & Community Services, until the niece obtains the age of 18 years. The placement by the Minister of the niece with Barnado's is until she turns 18. The Applicant has had ongoing involvement with his niece by visiting her when she was cared for by his parents and subsequently while she has been cared for by Barnado's. The Applicant and his wife have decided that they want to assume the care of the niece and she wishes to live with them.
But under the Child Protection (Working With Children) Act, 2012 ("the Act"), the conviction in 2002 renders him a "disqualified person" to whom the Children's Guardian is prohibited from providing a Working With Children clearance.
The Applicant has therefore applied to the Tribunal under ss.28(1) of the Act for an enabling Order declaring that he is not to be treated as a "disqualified person" in respect of that offence.
THE EVIDENCE
The evidence before the Tribunal comprises:
1) The Application for Stay of a Reviewable Decision filed 15 August 2013;
2) The Application to Grant an Enabling Order filed 21 August 2013;
3) The letter of 8 August 2013 to the Applicant from the Respondent headed: "Notice of Bar under Working With Children check";
4) Statutory Declaration of the Applicant of 22 October 2013;
5) The letter of 28 October 2013 from the Crown Solicitor to Ms Jenny Howell, Psychologist, providing instructions for an assessment of the Applicant;
6) Statutory Declaration of the Applicant of 11 September 2013;
7) Character reference dated 28 August 2013;
8) Character reference dated 29 August 2013;
9) Wedding photograph of Applicant, his wife, his niece, and his son at the Applicant's wedding on 20 October 2012;
10) Police Department Report on Offence and Conviction;
11) Police Department documents and criminal record of the Applicant;
12) Affidavit by Case Worker in relation to the niece sworn 6 December 2012;
13) Report to Children's Court by Case Work from Department of Family & Community Services, dated 10 December 2012;
14) Orders of the Bidura Children's Court of 22 November 2011;
15) Report to Children's Court regarding niece by Officers of Barnado's;
16) Referee questionnaire for permanent care and adoption program completed and signed dated 7 June 2013;
17) Referee questionnaire for permanent care and adoption program completed and signed dated 2 June 2013;
18) Referee questionnaire for permanent care and adoption program completed and signed dated 3 June 2013; and,
19) Nine page Assessment Report on the Applicant by Jenny Howell, Clinical Psychologist.
RELEVANT LEGISLATIVE PROVISIONS
Section 4 of the Act provides that:
"The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act.
Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working With Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar".
Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working With Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working With Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.
Section 12 provides that there are two classes of Working With Children Check Clearances which are:
a) Volunteer - authorising workers to engage in unpaid child-related work;
and
b) Non-volunteer - authorising workers to engage in paid and unpaid child-related work .
Section 13 provides for applications to be made to the Children's Guardian for a Working With Children Check Clearance.
Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working With Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The Respondent was born on 22 November 1977 and was 23 in May 2001 when the offence was committed.
In para (1)(e) of Schedule 2 to the Act, an offence under s.61L of the Crimes Act, 1900, is included in the specified offences that are disqualifying offences.
Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working With Children Check Clearance to AZY because of the offence in 2001. The Children's Guardian therefore refused to issue a Working With Children Check Clearance for AZY.
APPLICATIONS FOR AN ENABLING ORDER
Section 28 of the Act provides:
(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.
(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.
(3) A disqualified person may make an application under this section only if:
(a) the person has been refused a working with children check clearance, or
(b) the person's clearance has been cancelled, because the person is a disqualified person.(4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.
(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.
(6) If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance.(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.
(8) An enabling order may not be made subject to conditions.
(9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings.
Section 30 of the Act provides as follows:
(1) The Tribunal must consider the following in determining an application under this Part:
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(j) any information given by the applicant in, or in relation to, the application,
(k) any other matters that the Commission considers necessary.(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter.
Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal.(3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.
SERIOUSNESS OF THE OFFENCES WITH RESPECT TO WHICH THE PERSON IS A DISQUALIFIED PERSON
It is clear that the conduct was indecent.
AZY says that he was heavily intoxicated at the time. The Police records say that he was "moderately to well intoxicated". The Police record described his conduct as. "Grabbing the right buttock of a Police Officer".
The Applicant says that he was being accompanied into the Police by two Officers, one of whom was a female Police Officer, who was walking in front of him. The offence occurred as they were approaching the entrance to the Police Station. He described it as "pinching the bum" of the female Police Officer.
Whilst the conduct was indecent, there is not suggestion that it was sexually motivated. It appears from the evidence that it could be described as "cheeky", or "skylarking".
The evidence as to the behaviour which constituted the offence does not suggest that it was a serious offence, nor does the decision of the District Court that the penalty should be a 12 month good behaviour bond with supervision. The decision of the Court suggests that the offence was not regarded as serious, especially because although the Applicant had not been convicted of any offence for about 6 years prior to this offence in 2001, he had numerous offences as a juvenile.
THE PERIOD OF TIME SINCE THE OFFENCE AND THE CONUCT OF THE APPLICANT SINCE THE OFFENCE OCCURRED
It is 12.5 years since the offence. The Applicant has not been charged or convicted of any offence alleged to have occurred in the period since the date of the subject offence.
The evidence of the Applicant, which is not contradicted or disputed, was that he grew up in a Housing Commission area at Menai and the family had financial difficulties. His father was an alcoholic. He himself began drinking at an early age and mixing with "rough people and bad influences". He obtained employment at age 18 or 19 as a Machine Operator. He found it difficult to "fit in" as:
"The people at work were all well-spoken and with such confidence. I was quite envious and wanted to sound like that too. I wanted to be confident also. I didn't want to continue the way I felt. I knew drinking during the week had to be cut down as I was finding it hard to get up for work in the morning and operating machinery was risky. I distanced myself from my friends who had always encouraged me to drink more. Limiting myself to 3 beers during the week at night. I found at work I had more energy and working became more pleasant. My fellow employees noticed the change in me and I gained their respect. For the first time in my life I was earning money and doing something with my life. And I was finally confident in myself and my ability to change."
He said that when the incident occurred in 2001:
"I regretfully let my guard down. I was out with friends and drinking heavily. Thinking it was funny; I pinched the bottom of a Policewoman and was charged with 'Assault with Act of Indecency'. It was the final straw for me. Could I put myself in that position again? How could I risk losing my job? How could I risk everything I had worked hard for? I didn't want to go back down the track I came from. Things had to change for good this time. I ceased all association with friends outside of work and focussed on my job. I was determined to succeed in work and in life. Shortly after this incident I was promoted to Postage Supervisor, I could not have been prouder and it showed at work that I was well respected by my staff and became a good role model. It was something I never thought would happen. I became so passionate and so driven to go even further that weekends for me became a time to relax and re-energise to be ready for another week at work. I withdrew from alcohol and it became an occasional thing for me. Even on the odd occasion I had complete control and knew my limits. I also started bike riding on the weekend with new found friends as an extra activity to keep me active on weekends."
He had a partner by 2004 and they had a son born that year. His evidence is that when his son arrived:
"I was so over-joyed with happiness and frightened at the same time, thinking of my life growing up. I knew I had to use my past as a learning curve. I would be a great role model for my son and I would teach him respect and values and show him the right road to take in life."
In 2011, his niece was removed from the care of his parents by the Department of Community Services. She was 7 years of age at the time. His evidence is:
"I took that extremely hard as I was very close to her. I used to visit my parents and her every Wednesday night for a family dinner so when she was gone it left an empty space in my heart. As hard as it was to accept, I knew why she was taken away. My parents still drank a lot around her and the Department did not want her growing up in that situation. A situation I had lived with but I did not want that life for her. The Court allowed family visits 6 times a year and supervised for 4 hours. It's been so hard seeing her for only 4 hours and then losing her again."
He separated from his son's mother. Subsequently in 2006 he formed a relationship with his wife. They were married in 2012 and built their first home. At the time of the hearing they had been married for more than a year and had been in a romantic relationship for more than 7 years.
He has been working for the same company for over 17 years and has advanced through management positions. His evidence is that he:
"is well-respected by management and staff at my work and by my friends and family. They are all proud of the man I have become. I have not had a problem with alcohol in 12 years and I plan on keeping it that way for the rest of my life. I spend all my spare time now with my wife fishing or camping. I enjoy working on cars and having family bar-be-cues, and even playing cards with the in-laws. Drinking is a thing of the past. I may have 1 or 2 beers or a glass of red wine with dinner now. On weekends I am busy with jobs around the home. I may have a few drinks on family occasions, but I always know my limits and I have my wife and family who would tell you what I say is the truth. The boy I was will never be again. Of the man I have become now, I am incredibly proud of my achievements. The thought of my past and who I was makes me sick in the stomach. I wish I could erase it from my memory, but the only good I can take from it was a lesson learned, a lesson I will bestow on my children to lead them to a life of no regret. It's a life I would like to give to my niece ... if she were to come into permanent care with my wife and I. [She] Needs stability, good role models and a loving, supportive family to help guide her in the right direction. My wife and I are a team and together in our home we can show her the love and support she needs. [She] is now 10 years old. I don't want her to know the life I knew. I want her to know the life I have made for myself so she may do the same for herself as she grows into her teenage years then adulthood."
The evidence of the Applicant about his change and his good character is corroborated by a colleague, who works with the same employer. Her evidence is that he is the "Operational Planner for NSW" in the company. She says that he is also part of the NSW Site Leadership Team and Chair of the NSW Occupational Health & Safety Committee. She says that in his work he is reliable and professional.
The writer of the statement dated 28 August 2013 says that she has known for 6 years and considers him responsible, hard-working and caring, and on many occasions she has left children in the care of him and his wife over-night or for weekends. She says: "I never worry when my three children ages 5, 8 and 10 are in their care as I know they are well protected."
A report by Barnado's to the Children's Court in 2013 regarding the on-going care of the niece states that the Applicant and his wife have consistently attended the family visit for the niece and the niece attended their wedding and was a flower girl. It also reports that the niece enjoys the contact visit and they have been "positive" for her.
In support of an application for permanent care and adoption of the niece by the Applicant and his wife, a referee questionnaire was completed and signed by a friend and neighbour of the Applicant for over 21 years (and of his wife for about 6 ½ years). Other information about the Applicant's good character in the document, discloses that the Applicant is the Godfather of this referee's son.
There is a similar form completed and signed by a friend of the Applicant and his wife and also the employer of the wife, who has known both the Applicant and his wife for more than 10 years.
There is also a similar form completed by and signed by a party, who has been a friend of the parties for 10 years.
THE AGE OF THE APPLICANT AT THE TIME OF THE OFFENCE
The Applicant was 23 years of age at the time of the offence.
THE AGE OF THE VICTIM OF THE OFFENCE AT THE TIME OF THE OFFENCE AND ANY MATTERS RELATING TO THE VULNERABILITY OF THE VICTIM
The victim was an adult female Police Officer in uniform. She was vulnerable in the sense that she was in front of the Applicant at the time of the offence and had her back to him. She had no warning of the offence.
THE DIFFERENCE IN AGE BETWEEN THE VICTIM AND THE APPLICANT AND THEIR RELATIONSHIP (IF ANY)
There is no evidence as to the actual age of the Police Officer. The Applicant and the Police Officer had no relationship other than the Police Officer was performing part of her duties in taking him to the Hospital for the tests.
WHETHER THE APPLICANT KNEW OR COULD REASONABLY HAVE KNOWN THAT THE VICTIM WAS A CHILD
The victim was not a child.
THE PERSON'S PRESENT AGE
The Applicant is 36 years of age.
THE SERIOUSNESS OF THE APPLICANT'S TOTAL CRIMINAL RECORD AND HIS CONDUCT SINCE THE OFFENCES OCCURRED
In the period from July 1993 to July 1995 the Applicant had the following convictions as a juvenile: steal motor vehicle, low range PCA, mid-range PCA, disqualified driver, unregistered motor vehicle, uninsured motor vehicle, assault Police, and goods in custody.
Also, in respect of the occasion when he pinched the Police officer on the buttock, he was also convicted in 2001 of not supplying driver's particulars in relation to the motor vehicle involved in the accident.
His criminal record relates primarily to the period 1993 to 1995. The offence in 2001 occurred 6 years later, and as he explained to the Tribunal, it appeared that he had in those 6 years already strived to reform.
THE LIKELIHOOD OF ANY REPETITION BY THE APPLICANT OF THE OFFENCE OR CONDUCT AND THE IMPACT ON CHILDREN OF ANY SUCH REPETITION
The offence was not an offence against a child. It was not a sexual offence against a female. It was an offence by way of attempted humour, cheekiness, or skylarking. It occurred because his self-control was lessened by inebriation. That was an exception to his conduct generally between 1995 and now.
The solicitor for the Children's Guardian has obtained psychological assessment of the Applicant by a Forensic Psychologist, Ms Jenny Howell, of Parramatta. Her report is an assessment of risk.
Ms Howell has a Masters Degree in Psychology and 20 years experience as a psychologist which includes assessment and treatment of juvenile and adult sexual and violent offenders. She has also experience in the area of child maltreatment and child protection. She also provides professional training and program development in the areas of trauma, sexual and violent abuse. She is an accredited supervisor with the Children's Guardian Children and Young Peoples' Child Sex Offender Counselling Accreditation Scheme.
Among other things, her instructions were to give an opinion as to whether the Applicant poses a risk to the safety of children.
She described the Applicant's current mental status as:
"AZY presents as a quietly spoken, polite and articulate man. He impresses as having average intelligence with good communication and social skills. His speech, thought content and cognitive processes were appropriate and his affect was normal. He was co-operative with the assessment process and able to provide a detailed history. AZY denied any significant symptomology that would suggest a major psychological disorder, there were no psychotic feature evidence in his presentation, and he expressed no suicidal thoughts during interviews."
Ms Howell obtained a very detailed history from the Applicant.
In relation to his physical and mental health he told her he experiences good physical health without significant problems. She said that:
"He did not report the experience of a major illness or serious injury including neurological insult or minor head trauma and said he has not experienced a cognitive or behavioural concerns commonly associated with such injuries."
He also said he has never been treated as an inpatient for mental health concerns or referred to outpatient services and he is not using prescribed medication.
In relation to his alcohol and drug history, she reported:
"While living in the refuge AZY said he met and associated with other young people and began drinking alcohol which led to a conviction at age 15. He was referred to a 6 week drug and alcohol course which he completed, however, he continued to use alcohol up until his early 20's before making a conscious decision he said to 'change his life'. He denied any further history of alcohol problems or that he has required treatment services in relation to alcohol consumption or addiction."
He also told Ms Howell that he had smoked marijuana experimentally, although he had never used any illicit substance as an adult. He related his criminal history. In relation to the subject offence, he told her that he recalled "thinking it was funny".
The Psychologist reported:
"AZY said that today he is ashamed of his behaviour and has never acted in that way again. He said that this incident was the catalyst for him to change his life and to stop using alcohol. He reports that since 2001 he has never been charged with a new offence, including a parking offence."
He told the Psychologist that his son M is 9 years of age and lives in Griffith with his mother, who has remarried. She reported:
"AZY said he initially sought contact arrangements through the Family Court but withdrew when he realise the process was stressful for M. He and [his former wife] have an informal contact arrangement whereby AZY is able to visit M in Griffith which occurs approximately every 2 months and he said that he maintains regular telephone contact with M."
The Applicant told the Psychologist that he met his wife through a neighbour 7 years ago and they married in October 2012. He described his partner as very supportive of them being the primary carers of his niece and said that they hold similar views on the importance of caring for all family members. He said they are focussed on his niece's need for "love, stability, safety and belonging" and believe they can provide this for her.
He said that he believes that his niece's mother (his sister) has a diagnosis of bi-polar disorder. He said that the Department assumed the care of the niece from birth and the Minister has parenting responsibility for her until she is 18.
The Psychologist reported regarding his statements about the niece's placement since she was moved from the grandparents:
"This placement was stable for 2 years and AZY stated that [the niece] appeared to thrive in the placement. Her school performance and behaviour improved and she appeared happy. This placement broke down, he said, about 5 months ago, and AZY believes [the niece] is 'very distressed' by her circumstances telling him at their last contact visit 'You don't know what it's like', which he understood to refer to her current situation. AZY said they were able to comfort [the niece] during the contact visit but felt their response was inadequate to her need for safety and security.
AZY said he and his partner are committed to providing a home for [the niece] that meets her current and future emotional, environmental, development and financial means. AZY said that they understand what is involved in making such a commitment to [the niece].
In considering the risk the Applicant might pose to a child, the Psychologist used an actuarial measure called "The Static - 99A", although the measure assumes the offence was a sexual one. On that test the Applicant scored 2 (the victim was a stranger; the victim was unrelated), and that placed him in the low-moderate category with a predicted recidivism rate of 9% within a 5 year period, and 14% within a 10 year period. He has not re-offended in more than 12 years.
The psychologist then considered dynamic risk factors and concluded:
"The following issues are protective against AZY's risk:
1) AZY does not present as inherently anti-social either by way of attitude or lifestyle;
2) AZY has not come to the attention of any authority for sexual offences or inappropriate sexualised behaviour other than in relation to the conviction for assault with an act of indecency;
3) AZY does not present with a significant history of substance abuse behaviour as an adult;
4) AZY has no history of mental health concerns;
5) AZY's lifestyle is stable. He and his partner of 7 years married in October 2012;
6) AZY maintains stable employment and community participation;
7) AZY is reportedly not a victim of child abuse; and
8) AZY does not endorse attitudes and values supportive of child sexual abuse."
Ms Howell concluded that:
"It is my opinion that AZY does not pose a risk to the safety of children."
Later in the report she said: "It is my opinion that AZ's risk to the safety of children is low".
In the last two paragraphs of her report under the heading "Formulation", she reported:
"Structured clinical assessment, in conjunction with Static-99 and RSVP suggest that AZY is a low risk for sexual and violence re-offending.
It is my professional opinion that AZY does not pose a risk to the physical, emotional and sexual safety of his niece .... specifically or children more generally."
ANY INFORMATION GIVEN BY THE APPLICANT IN OR IN RELATION TO THE APPLICATION WHICH HAS BEEN SET OUT ABOVE EARLIER
There is no such other material of significance.
ANY OTHER MATTERS THAT THE CHILDREN'S GUARDIAN CONSIDERS NECESSARY
The Children's Guardian informed the Tribunal that it did not oppose the Application. No other matter was submitted by the guardian to be necessary.
CONCLUSIONS
The Applicant has never been convicted or charged with any offence against a child. There is no evidence that he has ever abused a child, whether physically, sexually or emotionally.
The Tribunal accepts that the offence which renders him a disqualified person, was not sexual conduct, although indecent.
A literal interpretation of ss.28(7), requiring the Applicant to prove that he does not pose a risk to the safety of children, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.
In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering ss9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section:
"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42]
"One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the 'risk' with the words that follow, namely, 'to the safety of children'.
On all the evidence the Applicant has established that he does not pose any real and appreciable risk to the safety of children. The Applicant therefore should have an enabling order.
ORDERS
The Orders of the Tribunal were:
1) The Tribunal declares that AZY is not to be treated as a disqualified person for purposes of the Child Protection (Working With Children) Act 2012 in respect of the offence "Assault with Act of Indecency" under the Crimes Act 1900, S61L for which he was convicted at Bankstown Local Court in 2002.
2) The Children's Guardian must grant AZY a Working With Children Clearance.
2