BHL v Children's Guardian

[2015] NSWCATAD 46

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BHL v Children’s Guardian [2015] NSWCATAD 46
Hearing dates:	30 October 2014
Decision date:	18 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	The decision of the respondent the subject of review is affirmed.
Catchwords:	Administrative review – review of decision to refuse the applicant with a working with children check clearance – applicant subject to disciplinary proceedings in regard to his relationship with a 17 year old student while he was a casual teacher at the TAFE – allegations included allegations of non-consensual sexual intercourse – allegations were found to have been sustained and a finding of misconduct was made - applicant acknowledged he had an 8 month relationship with the student, but denied he acted inappropriately in that relationship – whether the applicant posed a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Weapons Prohibition Act 1998
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	BHL (Applicant) Children’s Guardian (Respondent)
Category:	Principal judgment
Parties:	BHL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: B Brassil (Applicant) V Hartstein (Respondent) Solicitors: Crown Solicitors Office (Respondent)
File Number(s):	1410263
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person from which the name of the applicant could be identified is not to be published or broadcasted without the leave of the Tribunal.

Reasons for decision

1. The applicant, BHL, seeks review of the decisions of the respondent, the Children’s Guardian, to refuse his application for a working with children check clearance, under the Child Protection (Working with Children) Act 2012 (the Act).

2. The applicant is 29 years of age and is enrolled in a Masters of Exercise Physiology. He seeks a working with children check so that he can work in his chosen field, which involves face-to-face contact with young persons under the age of 18 years.

3. The applicant was previously been employed as a casual teacher at the NSW TAFE, while he was undertaking post-graduate studies. In 2008, the applicant was charged with a number of sexual offences as a result of a complaint made by his then girlfriend, a 17 year old undergraduate student at the TAFE. The charges were not proceeded with, but the Department of Education and Training (the Department), of which the TAFE is a part, undertook disciplinary proceedings against the applicant in regard to the allegations that had been made.

4. On 10 May 2010, the Department found the allegations to have been sustained and made a finding of misconduct against the applicant and he was placed on the Not to be Employed list.

5. On 5 July 2013, the applicant made his application, to the respondent, for a working with children check clearance. In light of the Department’s finding of misconduct by the applicant, the respondent conducted a risk assessment under section 14 and 15 of the Act.

6. Having completed the risk assessment, on 11 April 2014, the respondent determined to refuse the applicant’s application for a clearance under subsection 18(2) of the Act (i.e. the respondent found that she was satisfied that the applicant poses a risk to the safety of children).

7. Being dissatisfied by that decision, the applicant made this application for review of the respondent’s decision.

The Role of the Tribunal

8. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant’s application: see section 27 of the Act, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decision Review Act 1997.

9. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997.

10. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].

11. In determining this application, the Tribunal has power to make the following orders:

63   Determination of administrative review by Tribunal

(1)  …

(2)  …

(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.

12. For the reasons set out below, I have determined that the decision of the respondent is the correct and preferred decision and should be affirmed.

The Child Protection (Working with Children) Act

13. The objects of the Act are as follows:

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

14. Section 4 of the Act provides that the paramount consideration in the operation of the Act is the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse.’

15. The word ‘children’ is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently the word ‘child’ has the same meaning.

16. The Act prohibits a person from engaging in ‘child-related work’, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance (see subsection 8(1)). This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

17. Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

18. The term ‘child-related work’ is widely defined in section 6 of the Act. Subsection 6(1) provides:

6   Child-related work

(1)  A worker is engaged in child-related work for the purposes of this Act if:

(a)  the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with children, or

(b)  the worker is engaged in work in a child-related role referred to in subsection (3).

19. Direct contact with children is defined in subsection 6(4) to mean physical contact, or face to face contact. Where a person is granted a working with children check clearance, that clearance authorises the person to work in any child-related work prescribed under the Act or the Child Protection (Working with Children) Regulation 2013. It is unnecessary to set out the terms of subsection 6(2) and (3) as they are of no relevance to this review application.

20. Section 12 of the Act makes provision for two classes of clearance, a volunteer clearance authorising a person to engage in unpaid child-related work and a non-volunteer clearance authorising a person to engage in paid and unpaid child-related work.

21. Section 13 makes provision for the manner in which a person can make an application for a clearance.

22. Section 18 sets out how the respondent is to determine an application for a clearance.

23. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Act, or that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a ‘disqualified person’ and the respondent must refuse that persons’ application for a clearance. The applicant is not a ‘disqualified person’ and the subsection does not apply to him.

24. Subsections 18(2) and (3) apply to all other applications. These subsections provide:

1. Determination of applications for clearances

(1)  …

(2)  The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3)  The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

25. Persons who are subject to a risk assessment are those to whom any of the matters specified in Schedule 1 of the Act apply: see section 14 of the Act.

26. The relevant provision in this application is clause 2 of Schedule 1, which provides:

2   Findings of misconduct involving children

A person has been the subject of a finding by a reporting body that the person engaged in the following conduct:

(a)  sexual misconduct committed against, with or in the presence of a child, including grooming of a child,

(b)  any serious physical assault of a child.

27. Subsection 15(4) of the Act sets out the matters the respondent may consider when undertaking a risk assessment.

28. As I have noted, having undertaken a risk assessment under section 15, the respondent determined to refuse the applicant’s application for a clearance as she was satisfied that the applicant poses a risk to the safety of children: see subsection 18(2).

29. Section 27 of the Act makes provision for administrative review, by the Tribunal, of a number of decisions of the respondent, including a decision to refuse a working with children check clearance (see subsection 27(1)). That section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) …

(3) …

(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

30. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s 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 Children’s Guardian considers necessary.

(2) …

31. The above mentioned factors are similar to those the respondent may consider when undertaking a risk assessment under section 15 of the Act (see subsection 15(4)).

Evidence before the Tribunal

32. The respondent tendered into evidence its correspondence with the applicant, its risk assessment report, dated 14 March 2013 and relevant documents provided by the Department of Education and Training, the Waverly Local Court and previous employers of the applicant.

33. The applicant relied on an affidavit sworn by him, his mother and his current partner. He also relied on a risk assessment report, dated 12 August 2014, by Mr Tim Watson-Munro, Forensic Psychologist.

34. The applicant gave oral evidence at the hearing and was cross-examined by counsel for the respondent. Mr Watson-Munro and the applicant’s partner also gave oral evidence at the hearing and were cross-examined.

Consideration

35. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children by persons working in child-related work.

36. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

“What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children."”

37. These remarks have been accepted to equally apply to the word ‘risk’ as it appears in the 2012 Act.

38. As I have noted, the main issue is whether, on the material before the Tribunal and the applicable law, it can be found that the applicant poses a risk to the safety of children.

39. Set out below is the evidence and my findings in regard to the factors set out in subsection 30(1) of the 2012 Act.

Seriousness of the matters that caused the refusal of the applicant’s application for a clearance

40. The matters that caused the refusal of the applicant’s application for a clearance were the sustained allegations of misconduct involving a student under the age of 18 years and the circumstances that led to this finding by the Department.

41. The applicant does not dispute that he was in a sexual relationship with a student in 2007 and 2008, while he was a casual teacher at the same TAFE.

42. However, he disputes he ever acted inappropriately towards the student during that relationship.

43. In December 2008, the female student (the victim) reported to the TAFE counsellor that she had been in a sexual relationship with the applicant and expressed some concerns she had about that relationship. Her concerns were referred to the police, who obtained two statements from the student describing incidents of alleged sexual abuse of her by the applicant. The respondent provided a copy of the statements in their bundle of documents.

44. As a result of the statements made by the student, police executed a warrant on the home of the applicant. The applicant was subsequently charged with the following offences, in January 2009:

• Possess prohibited drug.

• Possess/use of prohibited weapon without permit.

• Goods suspected stolen in/on premises.

• Deal with property suspected proceeds of crime.

• Aggravated sexual assault.

• Sexual intercourse with a person under special care aged 17 years or over.

• Aggravated sexual assault.

• Sexual intercourse with a person under special care aged 17 years or over.

45. I have dealt with the drug related charges in more detail below. The circumstances of aggravation in relation to the sexual assault charges were that the student (the victim) at the time was under the authority of the applicant.

46. On 19 May 2009, the prosecution withdrew the sexual offence charges and they were dismissed. The charge of deal with property suspected proceeds of crime was subsequently also withdrawn and dismissed in August 2009.

47. On 22 September 2009, the applicant pleaded guilty and was convicted of the following offences:

• Possess prohibited drug contrary to subsection 10(1) of the Drug Misuse and Trafficking Act 1985.

• Possess/use a prohibited weapon without permit contrary to section 7 of the Weapons Prohibition Act 1998.

• Goods suspected stolen in/on premises contrary to section 527(1)(c) of the Crimes Act 1900.

48. The Court suspended sentence in regard to the abovementioned convictions on the condition the applicant entered into a bond to be of good behaviour for 18 months.

49. While the charges in regard to the sexual offences were withdrawn and dismissed, the Department commenced disciplinary proceedings against the applicant in regard to the allegations that were the subject of these charges. The allegations the subject of the disciplinary proceedings were in the following terms:

‘Allegation 1

It is alleged that while you were employed at …TAFE, …as a casual teacher and gym instructor you engaged in a sexual relationship with a 17 year old female student namely …..

Allegation 2

It is alleged that while you were employed at …TAFE, …as a casual teacher and gym instructor you engaged in non-consensual sexual intercourse with a 17 year old female student namely …

Allegation 3

On an occasion in March 2008 while on duty at the gym at …TAFE you followed [name of victim] into the female change rooms, grabbed her by the hair and pushed her to her knees, grabbed her around the neck with one hand, choking her and said, “Come on you want to. You like this.”

Allegation 4

On numerous occasions in 2007 and 2008 while engaging in sexual acts with [name of victim] you photographed her in sexually compromising positions.’

50. The applicant was also given the particulars of each allegation. These were those provided by the student victim in her statements to police.

51. The applicant did not participate in the disciplinary proceedings and did not respond to the allegations.

52. As I have noted, on 10 May 2010, each allegation was sustained and a finding of misconduct was made. It was recommended that the applicant’s name be permanently placed on the ‘NTBE list’ (i.e. Not To Be Employed list).

53. In a Statutory Declaration made by the applicant, on 11 March 2014, and provided to the respondent in the course of its risk assessment, the applicant denied the charges. He went on to say that, on legal advice, he declined to make any statement in response thereto. He said the Court proceedings were being prepared to go to trial when the prosecution advised his barrister the case would not be proceeding. He said he was given no reason as to why it was not proceeding or why the charges were to be withdrawn and dismissed.

54. In his affidavit, sworn on 14 August 2014, for the purpose of these proceedings the applicant again denied any wrongdoing during his relationship with the victim.

55. In his oral evidence the applicant said he had an eight-month relationship with the victim. He said he was not, as far as he was concerned, employed as a teacher during the time of their relationship. Nor was he given any guidance about relationships with other students. He said he believed the victim was 18 years of age. He said he made no enquiries of her about her age, but he understood she was that age. In cross-examination he agreed he had access to the victim’s student record, which contained details of her date of birth. He said looking back now he realised that his relationship with the victim was an inappropriate one. Having regard to the demeanour of the applicant and his more general denial of what was alleged, I was not persuaded that the applicant had any real realisation about the inappropriateness of his relationship with the student victim.

50. In response to a question as to why he did not respond to the misconduct allegations that had been made against him, especially as he has at all times denied any wrongdoing, he said he decided to ignore the disciplinary proceedings because he could not cope with what was happening.

51. In my view, the misconduct allegations, the subject of the disciplinary proceedings, were serious in nature. This is reflected in the disciplinary action that was taken by the Department on being satisfied, to the requisite standard, that each allegation had been established. This finding was made some time after the withdrawal of the criminal proceedings and given the applicant’s denial of any wrongdoing, it is difficult to understand why he did not participate, or respond to the allegations at the time. In these proceedings, he asserted he was not an employee of TAFE at the relevant time and hence there was no teacher student relationship. However, the Department was clearly satisfied that a relationship of this kind did exist. The applicant did not and has not in these proceedings provided any evidence which would support a contrary finding.

The period of time since the misconduct occurred and the conduct of the applicant since that time

58. It is almost 6 years since the alleged misconduct occurred. Since that time the applicant has received a Diploma of Fitness from TAFE and a Bachelor of Exercise Physiology and he has continued to study up until the time of the hearing. The applicant does not anticipate completing his studies until mid next year.

59. There is no record of any allegations of a sexual or violent nature having been made against the applicant since 2008.

The age of the applicant at the time the misconduct occurred

60. The applicant was 22 and 23 years of age at the time of the alleged misconduct.

The age of the victim at the time the misconduct was committed and any matters relating to vulnerability of the victim

61. The victim was 17 years of age at the time the alleged misconduct occurred. As I have already mentioned she was a young student and the applicant was a casual teacher at that time. That, is he was in a position of authority, which the applicant does not appear to have appreciated.

The difference in age between the victim and the applicant

62. The difference in age between the applicant and the victim was 5 years.

Whether the applicant knew, or could reasonably have known, that the victim was a child

63. As I have noted above, the applicant contends that he did not know the age of the victim. He tendered into evidence a copy of a photograph of the victim and himself in an attempt to show that she appeared to be 18 years and above. In my view, the applicant’s evidence in this regard was disingenuous and I find that he knew, or could reasonably have known that the victim was 17 years of age.

The applicant’s present age

64. As I have mentioned, the applicant is 29 years of age.

The seriousness of the applicant’s total criminal record

65. As I have noted, the applicant was convicted, on a plea of guilty, of an offence of possess a prohibited drug (cannabis), possess a prohibited weapon (can of Mace) and goods in custody (cash). These charges arose out of the police investigation into the sexual assault matters. In executing a search warrant at the applicant’s home police found 197.6 grams cannabis leaf, an opened can of Mace (pepper spray) and $5,530.00 in cash. Scales, aluminium foil and plastic resealable bags, used in the packaging and distribution of prohibited drugs were also found in the applicant’s premises. In addition to this a device for smoking cannabis was found together with three new cans of pepper spray still in their packaging. These were found in the applicant’s bedroom together with the cash. The applicant did not provide any explanation about these items found at his home.

66. Other than the abovementioned convictions, the applicant has no prior or subsequent convictions.

The likelihood of any repetition by the applicant of the misconduct and the impact on children of any such repetition

67. In regard to the likelihood of further misconduct or offending, the applicant relied on the report and evidence of Mr Tim Watson-Munro.

68. Mr Watson-Munro examined the applicant on 1 July and 12 August 2014. He described the applicant having presented as a ‘co-operative though anxious man, who is currently before the Tribunal referable to a decision to decline him a working with children certificate’. In his report, Mr Watson-Munro said, from his assessment of the applicant, there was nothing to indicate he suffered from any form of psychopathology. He noted the applicant had informed him of being a victim of a potentially life threatening assault, in 2004, after leaving school. During this incident stabbed in the left kidney and the applicant’s injury was so severe that he was prepared for surgery to remove the organ. However, his blood pressure stabilised and his kidney was saved. Arising from this incident the applicant developed symptoms of Post Traumatic Stress Disorder (PTSD), which was diagnosed by a psychiatrist, Dr Phillip Warren. Although anti-depressant medication was recommended, the applicant declined this type of treatment preferring to have counselling but as it eventuated he ceased after two sessions. Mr Watson-Munro said the applicant informed him that with the passage of time his symptoms had subsided. Mr Watson-Munro said he ‘suspected’ the applicant was ‘actively symptomatic’ during the time that he was at TAFE.

69. Mr Watson-Munro noted the applicant has been in an established three year relationship with his current partner, who is 27 years of age and is employed as a high school teacher. He also noted the applicant had advised that she was aware of his current ‘travails’ and supportive of him.

70. Mr Watson-Munro went on to set out the applicant’s drug, alcohol and psychological history. In regard to this history Mr Watson-Munro went on to say that on the two occasions he has seen and assessed the applicant he has been well oriented in time, place and person with no signs of psychiatric disturbance. He said the applicant denied any aberrant sexual fantasies. He said this was corroborated by the fact that he has been in a stable relationship for the past three years.

71. Mr Watson-Munro said the applicant was administered the Beck Depression Inventory, a self reporting questionnaire which canvasses psychological and physiological symptoms of depression and anxiety experienced by the person over the previous fortnight. Mr Watson-Munro noted the applicant was co-operative with the testing procedure and had no difficulty in reading, understanding and reporting to test items. He said the testing failed to reveal any signs of depression, although he is suffering some anticipatory anxiety due to the current proceedings. Mr Watson-Munro concluded by saying that he was highly impressed by the applicant. He said it was clear the applicant had matured substantially since 2007 and has worked hard to move forward with his career aspirations. He said appropriate psychometric testing, which did not reveal any form of disturbance, reinforced his clinical impressions of the applicant. He concluded by saying and in his opinion there was nothing to contradict the applicant working with children.

72. The respondent contends that little weight can be placed on the report of Mr Watson-Munro as the report is based on a number of misconceptions about the applicant’s conduct and it was also an inadequate risk assessment report.

Any information given by the applicant

73. As I have noted the applicant relied on an affidavit sworn by his mother and also his current partner. In her affidavit the applicant’s mother explained that her marriage to the applicant’s father was a difficult one and involved acts of violence and cruelty by him on her. She said she and the applicant moved back to Sydney in March 1990 when the applicant was 4 years old. She explained that at the time she and the applicant returned to Australia the applicant’s passport was in the name of his father. She said that when she enrolled the applicant in his school she decided to change his middle name and surname, as she was concerned about threats that had been made by the applicant’s father.

74. In her affidavit the applicant’s partner said she and the applicant have co-habited as exclusive partners since September 2012. She said she and the applicant have a normal personal relationship and they intend to marry and have children in due course. She went on to say that she had never seen or heard any indication from the applicant of any sexual interest in young or underage girls and he has expressed no interest in homosexual relations at all. She also said she was aware of the allegations that had been made against the applicant in 2008. The extent of that awareness was not explained.

75. The applicant’s partner did not add anything further in her oral evidence.

Any other matters the respondent considers necessary

76. The respondent contends that the decision the subject of review is the correct and preferred decision and should be affirmed.

77. In this regard the respondent argued that the applicant has not been truthful in his affidavit, nor in what he has told Mr Watson-Munro. Also of concern to the respondent was the applicant’s apparent lack understanding of the issues surrounding consent, boundaries or the responsibilities of people in position of power such as teachers or instructors. In my view, it cannot be said that the applicant was untruthful in that he gave false evidence. This does not mean that I found him to be fully frank in the evidence he gave. This may be due to his lack of insight into the alleged misconduct and a desire to minimise his relationship with the victim. The latter I understand is not unusual in applications such as these. It is the former, which is of concern.

Conclusions and orders

78. As I have mentioned above, the issue for determination is whether, on the material before the Tribunal, I can be satisfied that the applicant poses a risk to the safety of children and if I am not so satisfied, I must find that the decision of the respondent is not the correct and preferred decision.

79. There is no presumption that the applicant poses a risk to the safety of children by reason of his misconduct, but the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.

80. In summary, and for the reasons set out above, I have found the misconduct allegations made and found sustained against the applicant to be serious. They involved a young student, a child, when the applicant was in a position of authority. They also involved unlawful non-consensual sexual intercourse. In my view, the applicant’s blanket denials and ongoing failure to address the substance of his misconduct and the effect it had on the victim shows a lack of insight into his behaviour and the effect it had on the victim. It is this lack of insight, which in my view, is of concern and a factor relevant to the question as to whether the applicant poses a real and appreciable risk to the safety of children. In my view, this is not a matter adequately addressed by Mr Watson-Munro in his report or evidence.

81. At the same time, I accept the applicant has matured in the last 5 to 6 years and this is a factor, together with the fact that he is in a stable relationship, which is in his favour.

82. However, given the applicant’s current lack of insight, I am not persuaded that, without some intensive misconduct specific counselling that these factors in favour of the applicant diminishes the risk he poses to the safety of children if placed in child-related work where he is in a position of authority. Counselling may of course address these concerns and if they do, it is open to the applicant to lodge a further application under subsection 21(2)(b) of the Act. Subject to the application being supported with new evidence, it will be open to the respondent to accept that application. However, on the basis of the material before Tribunal I am satisfied that the applicant does pose a risk to the safety of children at this time.

83. Accordingly, for the reasons stated above, I find that the decision of the respondent to refuse the applicant’s application for a working with children check clearance is the correct and preferred decision and should be affirmed.

Order:

84. The decision of the respondent the subject of review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 March 2015