BRC v Children's Guardian

[2016] NSWCATAD 60

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BRC v Children’s Guardian [2016] NSWCATAD 60
Hearing dates:	20 November 2015
Date of orders:	05 April 2016
Decision date:	05 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member D Crowley, General Member D Kelleghan, General Member
Decision:	1. The decision of the Respondent is set aside. 2. The Respondent is to grant the Applicant a clearance.
Catchwords:	CHILD protection – Administrative law - Working with children – Risk – Whether risk real and appreciable – Risk of harm – period of time since offences - Evidence of risk to children – Absent evidence
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children ) Act 2012 Child Protection (Prohibited Employment) Act 1998 Civil and Administrative Tribunal Act 2013 Commissioner for Children and Young People Act 1998 Crimes Act 1900 Summary Offences Act 1988 Vagrants Gaming and other Offences Act 1931(Qld)
Cases Cited:	BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Commission for Children and Young People v FZ [2011] NSWCA 111 R v Commission for Children and Young People [2002] NSWIR Comm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 ADV v Commission for Children and Young People [2012] NSWADT 8 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115
Category:	Principal judgment
Parties:	BRC (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: Kenny Spring Solicitors (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1510085
Publication restriction:	a-64 (1) Civil and Administrative Tribunal Act 2013

Reasons for decision

1. The Applicant in these proceedings is referred to as "BRC". BRC is the applicant's pseudonym used in these proceedings.

2. On 26 March 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

3. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

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.

4 Safety, welfare and well-being of children to be paramount consideration

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.

4. These proceedings arise because on 22 December 2014, the Children's Guardian made a decision to refuse to grant BRC a Working with Children Check clearance. On 5 February 2015 the applicant BRC applied to the Tribunal for an enabling order pursuant to section 28 of the Act.

Background

5. On 8 October 2014 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a Working with Children Check clearance due to the fact that in his occupation whilst the vast majority of persons he deals with vocationally are adults, there is the possibility that he works with young persons aged 16 and 17 years.

6. On 22 December 2014 the respondent finalised the working with children check and the applicant was refused a clearance.

7. As a result of the refusal of the clearance the applicant is unable to engage in child related employment.

8. On 5 February 2015 the applicant lodged an application for administrative review before the Tribunal. The grounds of the application are (in summary) that: 'The incident occurred 22 years ago and did not involve children,’ ‘A good and sound record in society and a model citizen for 2 decades’, ‘I have raised two children who are now adults’, ‘I presently live in a stable relationship with my partner.’

9. The issue now to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of an enabling order in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)

The working with children legislative scheme

10. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).

11. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act).

12. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check clearance. A breach of section 8(1) is an offence.

13. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.

14. Section 13 of the Act provides that a person may apply to the Children’s Guardian for a working with children check clearance.

15. Section 18(1) provides that the Children's Guardian must not grant a clearance to a person who is a ‘disqualified person’. The section provides:

18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) 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,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

16. Subsection 18(1) provides that the Respondent must refuse an application for a clearance where the Applicant is a disqualified person by reason of having been 'convicted' of an offence falling within Schedule 2 of the Act.

17. In 1993 the applicant was convicted of the offence of ‘indecent assault’. It is because of this conviction for indecent assault that under the legislation the applicant is rendered to be a "disqualified person".

18. The offence of indecent assault is an offence under section 61 L of the Crimes Act 1900. Schedule 2 Clause 1 (e) provides:

Schedule 2 Disqualifying offences

1 Specified offences

(1) The following offences are specified:

….

(e) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O or 61P of the Crimes Act 1900,

19. Part 4 of the Act deals with reviews and appeals. Section 28 makes provision for review, by the NSW Civil and Administrative Tribunal, of decisions that a person is a disqualified person, by declaring that they are not to be treated as a disqualified person.

20. Section 28 provides:

28 Orders relating to disqualified and ineligible persons

(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 Children’s Guardian 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 Children’s Guardian 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.

21. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. The section provides that:

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.

Burden of Proof

22. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].

23. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

24. However, in this case there is a presumption that the applicant poses a risk to children as the applicant is currently a disqualified person seeking an enabling order pursuant to section 28 of the Act. The applicant is according to the legislation presumed to be a risk to the safety and well-being of children and young persons. (s-28 (7) ).

25. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 21 above).

26. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would ...exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

27. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

28. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

The Issue to be decided

29. The primary issue before the Tribunal in this application as outlined at paragraph 9 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to whether the applicant should (or should not) be granted an enabling order.

The Hearing

30. The applicant's application was heard on 20 November 2015 at Bathurst. The applicant was legally represented and Mr Edwards Solicitor appeared at the hearing. The respondent was represented by Counsel. At the conclusion of the hearing the Tribunal reserved its decision.

31. As outlined above, there is a presumption under section 28 of the Act that the applicant poses a risk to children as the applicant is a disqualified person (seeking an enabling order) under the Act.

32. A significant amount of material was tendered at the hearing by both parties. The applicant tendered a detailed written statement comprising 45 paragraphs. In addition the applicant tendered four signed references, a detailed written statement in response to the documents filed by the respondent, and an expert report from R Allen Psychologist with clinical and forensic expertise and experience. The applicant also provided written grounds with his application (as summarised above).

33. The respondent tendered three items / volumes of material. The first volume concerned material obtained under section 31 of the Act by the respondent. The second volume concerned material received under summons from interstate and the final item was a response from one of the applicant’s former employers who had terminated his services once the Notice of Disqualification was issued.

34. The applicant and his expert R Allen gave oral evidence at the hearing. No other witnesses gave evidence.

Applicant's Evidence.

35. The applicant gave oral evidence at the hearing. The applicant was asked during evidence in chief and cross examination about the disqualifying offence. The disqualifying offence was a conviction for an indecent assault committed on an adult female victim in early 1993 in the eastern suburbs of Sydney. The applicant was in a shopping centre car park when he approached the victim who was putting shopping in the boot of her car. The applicant placed his hand up the victims skirt and then turned and walked away from the victim. The applicant was seen to get in his car and drive away. The victim noted the registration and contacted police. At Court the applicant pleaded guilty and was fined.

36. Whilst in his statement tendered in these proceedings the applicant made no mention of placing his hand up the victim’s skirt, however when challenged in cross examination, he admitted doing so. In addition whilst the facts tendered by the prosecution in the Local Court referred to (the applicant) ‘blowing the victim kisses’ when she turned towards him after the assault, the applicant denied this behaviour in cross examination. When the applicant was challenged on whether this was recorded in the facts to which he entered a guilty plea, his response was ‘yes, it appears to be I don’t remember exactly, it was a long time ago.’

37. There was another incident involving police which resulted in the applicant receiving a fine. In 1998 the applicant pleaded guilty in Queensland to ‘Indecent behaviour’ under the Vagrants Gaming and other Offences Act Qld 1931, and received a small fine without apparently proceeding to a formal conviction. The legislative provision appears analogous with the NSW Summary Offences Act 1988. The circumstances of that matter were that the applicant’s car was parked in a car park and had been reported to police because it had aroused suspicion as it had regularly been seen at that location. When police attended they observed the applicant to be partially undressed. Whilst his body was covered with a towel, when asked what he was doing the applicant admitted that he had been masturbating.

38. The applicant was asked various questions in cross examination about the Queensland offence. His evidence was that at the time he was unaware that it was an offence, especially as he remained covered from view. In addition he had not disclosed the matter as he was unaware that it needed to be disclosed, but had since realised that it was an offence that required disclosure. He explained his behaviour in that his evidence was that at the relevant time he was under a lot of pressure at work and had a very stressful day. When asked why he went to the car park the applicant’s evidence was that it was on the way home, whereas a remote location would be too far away. The applicant agreed that the car park was a public place, and this was consistent with his statements as recorded by police at the time.

39. The applicant was asked about this incident in some detail by the respondent. His evidence was that he was in the car, originally listening to music, trying to de-stress. He engaged in the behaviour for stress relief. He admitted engaging in similar behaviour in similar circumstances a number of times over the prior weeks, but he could not remember the exact number of times. His evidence was that he was experiencing a large amount of stressors in both his personal and professional life, and that he had been suffering from anxiety and depression from 1993 until 2010.

40. The Tribunal was taken to paragraph 19 of the applicant’s expert report which reported that there had been no formal diagnosis (or history of mental illness) however the applicant reported feeling depressed over the period and in particular at the time of this offence.

41. The applicant’s evidence was that since the end of his second marriage and meeting his current partner he was a much more resilient person due to support he had received. The applicant’s evidence was that he wishes to continue as a trainer in his industry ‘to offer that back to the community and clients’. His evidence was that he is no longer suffering any depressive or anxiety based conditions as he has a good and supportive partner.

42. When challenged as to why he did not state all the facts and aspects of the two offences in his written statement, the applicant advised that he was very embarrassed about the whole thing and could not remember all of the detail. In addition he advised that he had prepared the statement himself and had received no legal or other assistance in that regard.

The evidence of the Expert Witness

43. Ms R Allen psychologist gave evidence by telephone in the hearing. Ms Allen was questioned about paragraph 29 of her report whereby she reported that the Static-99R assessment tool relates to offenders reoffending. As the applicant had been offence free for 17 years in the community and no indication of possible re-offending, then his risk level was considered low.

44. In cross examination Ms Allen was questioned about the second offence taking place in the car park of a shopping mall. This showed (in the respondent’s view) some similarity of offending and it was suggested as a possible pattern. In addition the respondent suggested that it showed a pattern of sexual offending. Reference was made to the words in the applicant’s statement that he had, ‘formed the habit of leaving work at lunchtime to get away from it all.’

45. The witness was asked as to whether she examined the dynamic (changeable) risk factors in assessing the applicant. Her evidence was that this was addressed in paragraph 30 of her report, and that at the time the applicant had developed coping strategies based around sex and alcohol to manage stress rather than more appropriate collaboration with others to identify concerns and achieve goals.

46. The witness gave evidence that in her opinion dynamic factors are more useful in respect of treatment needs and of lesser utility in considering other indicators or conclusions. When questioned as to whether the applicant still presents with such risk factors, the witness in answering ‘no’ reiterated the conclusion and opinion from her report.

47. The witness was asked about the applicant’s emotional instability. The evidence was that the applicant was depressed, and that he did not get re-diagnosed to verify in some way the claim. However it was clear from the evidence that the applicant was not coping emotionally and was using avoiding strategies. The Millon Clinical Multiaxial Inventory (MCMI) assesses for depression anxiety and drug and alcohol excess. Having applied the MCMI, the expert found that there was no present evidence of these impediments to his functioning.

48. The witness was asked about the 1993 incident (which entailed the disqualifying offence), and was asked whether there was any evidence of minimising by the applicant in respect of those facts. The witness opined that there was / is no relevance to minimisation being indicative of risk. In her opinion based on both experience and the academic studies, minimising does not increase the risk of re-offending.

49. The witness was asked about the 1998 incident, and whether masturbating in a car park indicated risk taking behaviour which might elevate risk. The evidence was that such a situation could potentially do so. The respondent contended in cross examination of the witness that if the applicant was to re-engage in the 1998 behaviour, in similar circumstances, then there is a real risk that children might come to harm. The witness agreed with this proposition.

The Respondent's evidence and submissions

50. The respondent filed written material as set out at paragraph 33 (above). In oral submissions the respondent submitted that the applicant had not been candid with his answers. Reference was made to the discrepancy in the applicant’s evidence concerning whether he blew the victim a kiss immediately after the 1993 indecent assault. The respondent submitted that such behaviour was not a mere ‘moment of madness’ but something planned and executed. However the Tribunal was not aware of any evidence to support this view based on the evidence and material before it.

51. The respondent submitted that the applicant had not been truthful with the Tribunal in relation to the number of times that he was present in the car park (the 1998 Queensland incident). In respect of the applicant’s mental health and coping in periods of stress, the respondent submitted that the applicant’s denials of various stressors indicated evidence of minimisation. Counsel for the respondent maintained that in respect as to the applicant’s mental state (or otherwise), the applicant was (in her submission) misleading the Tribunal and as a result his response was contrary to his duty under section 28 (5) of the Act.

Applicant’s submissions

52. The applicant’s Solicitor gave oral submissions at hearing. The applicant submitted that the object of the jurisdiction was to protect and not to punish. Submissions were made that there was no discernible pattern between the two offences in 1993 and 1998.

53. Whilst the 1998 behaviour was clearly a pattern of behaviour which occurred on a small number of occasions over a couple of weeks culminating in the intervention by police, the 1993 matter was an isolated incident.

54. It was submitted that the 1993 offence involved an adult victim and that the 1998 offence did not involve any victim (on the evidence before the Court and the Tribunal). It was further submitted that the 1993 indecent assault was at the lower end of seriousness.

55. The applicant took the Tribunal to the opinion expressed in the expert report, whereby at paragraph 29, Ms Allen indicates a risk moving from the moderate-low range, to low. The applicant submitted that there was no evidence that any of his offending behaviour had been directed in any way towards children.

56. In concluding the applicant submitted that there was a significant passage of time since the offences occurred (22 and 17 years) and that these were the only two offences on his record. It was submitted that the applicant’s record was not a serious record compared to other applicants for enabling orders.

Section 30 (1) considerations

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

57. The applicant was charged and convicted of the offence of indecent assault. The offence was committed against an adult female victim in early 1993. The applicant was in a shopping centre car park when he approached the victim who was putting shopping in the boot of her car. The applicant placed his hand up the victims skirt and then turned and walked away from the victim. The applicant was seen to get in his car and drive away. The victim noted the registration and contacted police. At Court the applicant pleaded guilty and was fined.

58. In 1998 the applicant was breached for ‘Indecent behaviour’ under the Vagrants Gaming and other Offences Act Qld 1931, and pleaded guilty and received a fine. The circumstances of that matter were that the applicant’s car was parked at the end of a shopping centre car park and had been reported to police. When police attended they observed the applicant to be partially undressed with his body was covered with a towel. The applicant told police that he had been masturbating whilst seated in the car.

59. The 1993 offence is a serious offence. It is an offence listed in Schedule 2 of the Act and as such it is a disqualifying offence. The applicant submitted that the circumstances of this offence were at the lower end of the range. Whilst the Tribunal agrees that the circumstances of the offence on the facts and evidence before it are not the most serious, neither is the offence at the bottom of the range. Having regard to the range of charges available in respects of assaults generally, and noting that the preferred charge appears to be the most appropriate, in our view the circumstances are at the middle of the range of objective seriousness.

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

60. The applicant's offending occurred over a five year period, and it has been 22 years since the first offence and 17 years since the most recent offence. The applicant has not come to the attention of the criminal justice system since the second offence in 1998.

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

61. The applicant was approximately 31 when the disqualifying offence occurred and 36 when the second offence 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.

62. The first offence involved an adult female victim of unknown age. The charge did not include any circumstances of aggravation so in our view it is reasonable to infer (in the absence of any evidence to the contrary) that the victim was not otherwise vulnerable. There was no victim in respect of the second offence.

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

63. The victim of the first offence was a stranger to the applicant. There is no evidence that the conduct was premeditated. As the age of the victim is unknown, the age difference is also unknown. The provision does not apply to the second offence.

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

64. The victim was not a child.

(g) The person's present age.

65. The applicant was 53 years of age at the time of the hearing.

(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred.

66. The total criminal record comprises the two offences set out at paragraphs 35-37 and 57 and 58 (above). The disqualifying offence is a serious offence attracting a possible penalty of 5 years imprisonment. It appears from the Crimes Act 1900 that the 5 year penalty provision has been in place since the provision (s61L) was added to that Act in 1989.

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

67. A risk assessment was provided by the applicant in respect of his application and an assessment of his real and appreciable risk of reoffending or behaving in a manner detrimental to the safety and well-being of children. The report is favourable to the applicant’s application in that he is assessed as having a low risk, and that there was no direct evidence of any risk to children. The report infers that due to the passage of time since the last offence (in 1998) there is minimal likelihood of the applicant reoffending. The only possible area of risk is considered to be in respect of adult females, but that is not of itself evidence that the risk is real and appreciable.

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

68. The applicant has provided a large volume of material both in written form and oral evidence and submissions. Exhibits A3, A4, and A5 tendered by the applicant attest as to his character. A4 and A 5 are predominantly vocational and / or character references. A3 however identifies aspects of the disqualifying offence and the proceedings before the Tribunal. The author of A3 provides evidence that he has known the applicant since the year following the disqualifying offence.

69. In our view some weight can be attached to this document in respect of the applicant’s general character since 1994 albeit with no reference to the Queensland offence in 1998. However, it is clear that the applicant believed that the 1998 offence did not need to be addressed either with the Children’s Guardian or third parties. (Due to the lack of any formal conviction). The Tribunal accepts that this was the applicant’s understanding even if it was an incorrect understanding.

70. The applicant submits that any perceived minimising of his behaviour is due to embarrassment caused by feelings of shame and his self- consciousness in having to speak openly and frankly about such matters before the Tribunal.

71. In respect of the 1998 incident, the applicant submits that the location of the car park was chosen because he was familiar with it, and he held a view that the car park was relatively vacant. The applicant submitted that he parked away from other people with the intention that his actions would not be seen by other people.

72. Matters concerning the applicant’s health at the time of the two offences, and his coping mechanisms, and other pressures in his life, were advanced by the applicant by way of mitigation.

(k) Any other matters that the Children's Guardian considers necessary.

73. The Children's Guardian submitted that material obtained by summons in respect of the applicant’s son and daughter and a 2008 notification by the Queensland Department of Communities, Child Safety and Disability Services (the Department). Following an investigation of allegations a report concluded that an issue was substantiated in respect of the daughter and not substantiated in respect of the son. However the report also concluded that neither child was in need of any protection available or afforded under the relevant legislation.

74. In this regard the report found that there was not an unacceptable risk of future harm, and that the parents (including the applicant) were willing and able to protect the children from harm and that the children did not need protection. We note that this is a different test / standard to that under the Act.

Consideration

75. We have carefully considered all of the material submitted by the parties in these proceedings. Whilst we note that the applicant is a disqualified person, the task of the Tribunal is to ascertain whether the applicant is a real and appreciable risk to the safety and well-being of children and young persons.

76. Whilst the respondent took issue with aspects of the applicant’s evidence at hearing and his candour, in our view having regard to the explanations given by the applicant, and the difficultly he was having in addressing unfortunate aspects of his past, the applicant provided a reasonable level of response under cross examination. In addition in our view the applicant did ultimately provide his answers in a consistent and forthright manner. In our view any aspects which could be considered minimising behaviour were addressed by way of explanation by the applicant.

77. In addition, the expert witness offered an opinion both as to the basis of any minimisation by the applicant, and the view that such behaviour had no bearing on future risk when the circumstances of this case are considered. (see paragraph 48 above).

78. There are many cases which address the issue of how risk should be considered and what findings if any can be made on such matters in the context of this jurisdiction. In the current case the findings as to the conduct in respect of the two offences are clear. The findings were established by guilty pleas, and any minor deviation from certain facts are in our view of little consequence when the totality of the evidence and material is considered.

79. In the case of BFC v The Children's Guardian [2014] NSWCATAD 90 His Honour Judge Mullane considered the issue of risk in respect of an enabling order application. At paragraphs 57 to 58 His Honour considers the conclusion of the expert witness and the meaning that this carries in respect of risk. At paragraph 58 reference to Young J’s comments in the case of ‘V’ are considered.

57. Overall, the Tribunal finds that Ms Howell's conclusion is reliable and therefore the Tribunal accepts that the Applicant does not pose a real risk to children. It should be noted, however, that this is not a finding that the Applicant is no risk at all. Theoretically, most adult males pose some risk, but it is well established that the risk to be considered is a real risk, rather than a theoretical risk.

58. In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(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 [At par 41] and [at par 42]:

"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".

"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'".

80. We have carefully considered all of the evidence and submissions given, and filed by the parties even if we have not referred to every aspect of it specifically in these reasons.

81. Having regard to the material before the Tribunal, in our view there is insufficient evidence and material to make a finding that the applicant poses a real and appreciable risk to the safety and well-being of children and young persons.

Conclusion

82. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act, we reach the following conclusion.

83. The evidence and material referred to in these reasons does not establish that the applicant poses a real and appreciable risk to the safety of children.

84. Therefore in our view the evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children.

85. In expressing these views above we note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

86. In our view having regard to all of the material before the Tribunal, the applicant does not pose a risk to the safety of children.

87. It therefore follows that the Tribunal should make an enabling order in accordance with section 28 of the Act.

Orders

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act 2012 in respect of the disqualifying offence.

2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a Working with Children Check Clearance.

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: 05 April 2016