CBN v Children's Guardian

[2016] NSWCATAD 240

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CBN v Children’s Guardian [2016] NSWCATAD 240
Hearing dates:	12 May 2016
Date of orders:	26 October 2016
Decision date:	26 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member E Hayes, General Member
Decision:	(1) The decision of the respondent dated 4 February 2015 to refuse to grant the applicant a clearance is set aside. (2) In substitution for that decision, the following decision is made; The applicant is granted a Working with Children Check clearance
Catchwords:	CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Application to exclude evidence – Inability to test evidence – Absence of witness – No information of availability of witness – Weight of evidence in absence of testing of evidence – Fairness to party – No presumption of risk s27
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013 Criminal Records Act 1991
Cases Cited:	Children and Young People v FZ [2011] NSWCA 111 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIRComm 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 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Children’s Guardian [2015] NSWSC 523 J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Children’s Guardian v BRL [2016] NSWSC 1206 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Category:	Principal judgment
Parties:	CBN (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: Legal Aid (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510362
Publication restriction:	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.

Reasons for decision

1. On 25 June 2015 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse a working with children check clearance. That decision was made on 4 February 2015.

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

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30 (1) of the Child Protection (Working with Children) Act 2012, the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons.

4. On 13 August 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.

5. 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.

6. These proceedings arise because on 4 February 2015, the Children's Guardian made a decision to refuse to grant CBN a working with children check clearance. On 25 June 2015 the applicant applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act.

Background

7. On 26 February 2014 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a clearance in order to resume his work as a support worker assisting disabled residents.

8. During the period from February 2014 until February 2015 the respondent considered the applicant's application.

9. On 31 October 2014 the respondent issued a 'Notice of Proposed Refusal of Application' pursuant to section 19 of the Act. After considering all of the material previously provided and reviewing the matter, on 4 February 2015 the respondent finalised the working with children check and the applicant was refused a clearance.

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

11. The applicant lodged the application for administrative review before the Tribunal beyond the period provided for in section 27 (1) of the Act. The section 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.

12. On 13 August 2015 the Tribunal extended the time for the applicant to lodge his application to 25 June 2015 (the date of lodgement) in accordance with the provisions of section 41 of the Civil and Administrative Tribunal Act 2013. The grounds of the application are:

I do not pose a risk to the safety of children.

13. 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 or refusal of a clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)

The working with children legislative scheme

14. 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).

15. 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).

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

17. 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.

18. Section 14 of the Act provides that a person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 apply to the person.

19. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a clearance to determine whether the applicant poses a risk to the safety of children.

20. Section 18(2) provides that 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.

21. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian.

22. Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a clearance (see section 27 (1)). The 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.

23. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides:

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

24. 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] NSWIRComm 101 at [130].

25. 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]. The Supreme Court has also recently observed that no party bars an onus in administrative review proceedings (to which an application under section 27 of the Act constitutes).

26. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

27. In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act.

28. 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 23 above). Section 15 (4) sets out the criteria which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15 (4) and section 30 (1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15 (4) and "must" in 30 (1).

29. 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". ...'

30. 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.

31. 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

32. The primary issue before the Tribunal in this application as outlined at paragraph 13 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a clearance in relation to the applicant: (section 63 Administrative Decisions Review Act 1997).

The Hearing

33. The matter was heard on 12 May 2016. The applicant was legally represented by Legal Aid and Mr Freer solicitor appeared at the hearing. The respondent was represented by Ms Hartstein of Counsel instructed by the Crown Solicitor.

34. At the commencement of the hearing the Tribunal heard a number of submissions from the applicant’s representatives concerning the admissibility and weight which should be attributed to portions of the material filed by the respondent.

35. The applicant pressed an objection to all material where there was a statement by the complainant in the criminal allegations against the applicant, and some other material relating to those allegations and more recently identified allegations from a historical context. The context of the earlier reports being that the applicant was charged with one count of indecent assault and two counts of sexual intercourse with a child between 10 and 16 under section 66C of the Crimes Act 1900.

36. The background to these charges was that a female young person went to the doctor with the complainant (who was her cousin). The young person disclosed an allegation to her doctor that she had been assaulted by the applicant. That allegation was not investigated or otherwise progressed by police, but charges were preferred and heard in the District Court concerning allegations made by the complainant. Those charges resulted in a not guilty verdict at the conclusion of the trial.

37. It was submitted by the applicant that the complainant’s statements were not evidence before the Tribunal due to the fact that (on their submission), they could not be tendered without the applicant having first tested their contents by examining the maker of the statements (the complainant). The respondent submitted that the complainant was a child when she made the statements, and that it would not be appropriate to for the Children’s Guardian to call the complainant as these proceedings were not a rehearing of the criminal allegations in a civil court, rather they were about risk.

38. The applicant identified 117 folios of the total 507 folios of the respondent’s tender that it pressed a partial or complete objection. The Tribunal considered these matters in the context of the nature of the jurisdiction and in particular noted that the rules of evidence did not strictly apply to these proceedings, however noted the weight that could be considered in the absence of the evidence being tested. These matters are canvassed later in these reasons in a consideration of the evidence.

Applicant’s Evidence and Submissions

39. In opening submissions it was submitted that irrespective of what the Tribunal finds, the applicant is not a risk to children having regard to the relevant standard. It was submitted that the allegation of sexual misconduct involving the complainant occurred in 1983. The complainant was 7 years old and the applicant 14 or 15 years old. The later allegation of sexual assault was in 1988, where the applicant was 19 years old and that complainant 14 years old.

40. In respect of the allegation (which was not investigated) involving the young complainant’s cousin the applicant submitted that the nature and circumstances of that complaint is unknown, other than very brief descriptors in a statement on page 73 of the of the respondent’s material. There is also a 2008 record of that allegation (from 1983 to 1986) which arises within a COPS Event at page 151 of the respondent’s material.

41. It was submitted that there are no other complaints of any misconduct towards other persons outside of the 1980’s (including the year 1990).

Applicant’s Evidence

42. The applicant gave evidence at the hearing. The applicant is currently working at a ‘Rehab Centre’. He adopted his statement and affidavit as true and correct. The applicant was shown pages 167 to 202 of the respondent’s bundle. He adopted his Statutory Declaration of 19 May 2014 at pages 167 and 168 as being true and correct. In addition he adopted a further Statutory Declaration of 10 June 2014 at pages 195-196 of the bundle as true and correct.

43. The applicant stated in evidence in chief that he seeks the clearance because the nature of the work that he is involved with requires a clearance. The relevant duties includes disability work, engagement in community justice programs and a further community based restorative program involving children.

44. In cross examination the applicant was taken to paragraph 15 of his affidavit and answered that he did not engage in sexual activity prior to 15 years of age. The applicant denied any sexual activity with his cousin and he specifically denied any sexual intercourse taking place on the river bank following any alleged motorcycle ride with the victim. In addition the applicant denied any allegation of sexual assault with the complainant’s cousin (the victim referred to in the 2008 COPS Event). The applicant denied engaging in any sexual activity with three female cousins when he was aged from 15 to 19 years.

45. The applicant gave evidence that his first serious relationship, his first sexual encounter was at 17 years. During his adult life he had fathered children to four different women. These matters had all occurred prior to his current long term relationship. One of the four women (‘SC’) he had lived with for three years and they had a child together. That relationship ended towards the end of 1990 due to fidelity issues concerning ‘SC’. The applicant was questioned by the respondent’s Counsel about excessive cannabis and alcohol use around this time (late 1990-1991) due to matters before the Local Court in late 1991. The applicant denied the assertion that he started smoking cannabis as he was significantly distressed by the breakup with ‘SC’ and her actions in being unfaithful.

42. Counsel for the respondent highlighted to the applicant during his evidence the various contradictions in the references to his drug use in the various documents before the Tribunal and whether he was being untruthful in his evidence. It was submitted that the details differed in the applicant’s affidavit, parole reports and psychological reports.

43. In ascertaining matters pertaining to future risk it was put to the applicant in cross examination why he tried the drug ‘ice’ at an earlier time. The applicant answered that ‘it was one of those things’. He tried cocaine five years ago, however that was when he was going through a ‘down period’. The applicant’s evidence was that if he goes through a ‘down period’ again he will not take up illicit drugs or substances to cope. After an adjournment the applicant continued his evidence responding to questions concerning his gambling habits.

44. The applicant gave evidence that he limits his gambling under the direction of his partner (who is his wife). The applicant stated that he only bets on football and horse races, but in clarifying his evidence indicated that he does enter the various large pool / prize money lotto contests such as ‘Oz lotto’. When challenged on this point as to his gambling the applicant advised that not only does he enter the competition, but inferred that everyone would put a ticket in it, and therefore that behaviour is normal and appropriate. In respect of his overall gambling, he does not spend thousands. He spends $20 at a time. However he explained the reference to $100 as 'putting on a $100 bet once a week' which is his limit. The applicant stated that gambling is not a problem now but that it had been a problem for him in the past.

45. During cross-examination the applicant was taken to paragraph 10 of the psychological report which he tendered in support of his application. In that report there was reference to the witnessing of an incident where the father assaulted the mother of the applicant. However at paragraph 7 of his affidavit the applicant deposed that .. ‘Despite some trouble with dad, I believe that I had a great upbringing and I felt like I had everything that I needed.’ The applicant clarified this difference by stating that his parents separated when he was 8, and he went under his Grandparent’s care. It was his Grandparents who contributed to and were responsible for his ‘great upbringing’.

46. In re-examination the applicant was asked about how he gave his prior evidence. He advised that he had tried to drive down to Sydney for his hearing after working the night shift at his job in regional New South Wales the night before the hearing. After starting out his car was playing up and he had tried to organise a hire car. This was not productive and he had just managed to get a train ticket and catch the train. His evidence was that he was sitting behind some intoxicated people on the train and as a result he had only had 2 hours sleep.

47. The applicant was asked what experience he has with drug and alcohol use. The applicant advised that his son had significant drug problems and was currently serving a prison sentence arising from drug related crime.

48. The applicant was asked what in his view constitutes a regular drug user. His opinion in evidence was that such an individual was out every day committing crime in order to feed their drug habit. In addition their body changes from excessive drug use either directly or indirectly.

49. The Tribunal inquired of the applicant as to his ‘Ice’ experimentation and use as referred to in the history provided at paragraph 23 of the expert report. One of the contributing factors for the most recent drug use was referred to as ‘He also stated that he had been experiencing a hard time with work, although he denied regular use of illicit substances as a method of coping.’ In his answer in evidence to the Tribunal he advised that work had at the relevant time stood him down and at the time he had continued to struggle coping with his sister’s death.

The Expert Witness

54. Ms C Hare Forensic Psychologist prepared a report tendered by the applicant in the proceedings, and gave evidence at the hearing.

55. In evidence in chief the expert was asked whether there were any variations or notations she wished to clarify in her report. The expert nominated issues about some of the inconsistencies in the evidence given in the hearing. Those matters did not change her conclusions in respect of the risks but did shed some doubt on the veracity of the account given to her during the assessment.

56. In cross examination the expert was asked about the applicant’s social network, the other substance abusers and matters of that nature. The expert gave evidence that in her opinion on the material before her, those persons were more associates than friends and the applicant had a support network which was predominantly his wife, who is also a criminal lawyer.

57. Matters were canvassed concerning the issues of contrasting the applicant’s pro-social v anti social supports. It was conceded that on the material it sounded like there were some persons in the applicant’s support network who presented with anti social tendencies.

58. The expert was questioned about the reference in her report to protective factors such as the ‘apparently law-abiding social support network’. It was conceded that this may have not been the best descriptor for that aspect of his current life setting, and that the words ‘non serious criminal’ would describe aspects of the applicant’s circle of acquaintances. The applicant’s gambling and past drug taking are indicative of ‘risk taking’, but in the experts opinion there was no evidence that this aspect provides evidence (on the material before her and the available facts), of any risk to children.

59. The expert was directly asked whether the applicant’s personality traits were prone to risk taking behaviour, to which she answered ‘No’. The expert advised that she administered testing on this aspect and whilst there was certainly the existence of immature and risk taking behaviour throughout his life, these had diminished due to the stability and tenure of his current long term spousal relationship.

60. The expert was asked about the use of the drug ‘Ice’ by the applicant, and she advised that the applicant told her that it was a one off single inhalation of a pipe that was being passed around communally. In respect of the applicant’s gambling, the expert advised that this was not itself ‘anti-social’ as the family unit was not going without food, and the family had made arrangements to address it, by an agreed strategy being in place that she was advised was effective.

61. The expert’s report concluded that the applicant poses an overall low risk to the safety of children, and provided a recommendation that there was no justifiable reason from a risk assessment perspective that the applicant should not be granted a clearance.

Written Evidence

Applicant’s written material

62. The applicant filed his affidavit (which was attested and adopted in the proceedings). In his affidavit the applicant sets out a life history and a current social / family history. The affidavit addresses the applicant’s former and current levels of drinking, where he drank more in the past, and now drinks less than he used to. The affidavit broadly addresses drug use and provides information consistent with his oral evidence and broadly consistent with the account given to the expert. The reference is in broad terms with no details (as in types of drugs taken at various times).

63. The second half of the affidavit addresses the minor criminal history and the serious criminal allegations. The affidavit provides evidence about the applicant’s state of mind during the court proceedings and the impact on his mental health. More recently work impacts have placed the applicant under mental stress. The applicant provides evidence about how the allegations made him feel and his attitude towards the complainant. These matters were not changed as a result of the oral evidence and examination.

64. The applicant also provided evidence that the other serious allegations (which did not proceed to any formal police action). Were hitherto unknown to him prior to being served with section 58 and other material by the Children’s Guardian.

65. In addition to the affidavit and his application for review, the applicant filed the report of C Hare Forensic Psychologist dated 22 December 2015.

Respondent’s written material

66. As indicated earlier the respondent filed substantial material under both section 58 of the ADR Act and material obtained since the commencement of these proceedings as outlined at paragraph 38 (above). Whilst the respondent did not call any witnesses, substantial cross-examination of the applicant and examination of the applicant’s expert occurred at hearing.

Submissions

67. Both parties filed detailed written submissions prior to the hearing, in addition to oral submissions made at the conclusion of the evidence at the hearing.

68. In oral submissions the applicant outlined how considerations in the case of BKE (BKE v Children’s Guardian [2015] NSWSC 523) is different to the current matter. The Tribunal as taken to what the applicant submitted was the relevant standard or test for considering the evidence. In respect of the principles outlined in the lead case of Briginshaw it was submitted that whether the contentious element occurred, or did not occur, such a finding needed to be made on a substratum of fact. However, there was (it was submitted) a middle ground or position but that one cannot brush past this. In the applicant’s submission the Tribunal needs to come to some level of satisfaction about whether those things (the serious allegations) actually occurred.

69. The applicant took the Tribunal in submissions to a document that they had authored as an aide memoir for the hearing. The document bore the title of an Evidence Comparator and Evidence Chronology, and dealt with the 1983 allegations. By comparing and contrasting the material before the Tribunal the applicant submitted that the conduct didn’t happen, when and where the complainant said it did. It was submitted that by applying this analysis (from the documents and the evidence), that wherever there is objective evidence it contradicts the evidence of the complainant in respect of the 1983 allegations.

70. It was further submitted that in respect of the 1988 allegation, this also could not have occurred in the manner alleged. Other records indicated that the allegations related to 1990 not 1988. The applicant submitted that the employment records of the applicant for the period of mid to late 1990 were an example of where other objective evidence contradicts the respondent’s position in respect of the allegations.

71. It was also submitted that in circumstances where the applicant has not had the opportunity to cross-examine the complainant, and there is objective evidence which contradicts the complainant’s evidence, the Tribunal should prefer the applicant’s evidence and assertions.

72. In written submissions the applicant in responding to the respondent’s submissions addressed comments about erring on the side of caution. These points were addressed in part during the hearing, where the Tribunal noted that the remark referred to beneficial aspects of the legislation being directed towards the protection of children. References to the ‘paramount principle’ in submissions the Tribunal understood to mean the overarching principle, and noted that this was much more than just ‘one of the factors to be taken into account’. (Para 7 written subs filed 11 May 2016).

73. The applicant’s written submissions also addressed the differences between the present case and the case of BKE. The applicant correctly observed that BKE involved a disqualified person whereas there was no onus on any party in the current administrative review proceedings, nor was there any presumption that he posed a risk to the safety and well-being of children and young persons.

74. However the applicant submitted that the middle way (where the Tribunal is not satisfied either way as to the truth of certain allegations, but nevertheless determines that a real and appreciable risk exists), is not open to the Tribunal because of the difference in the starting point or presumption in BKE.

75. In closing the applicant submitted that the evidence tends to indicate that the allegations are not true and that there is no corroborative evidence (other than that of ‘co-complainant’s) and that the circumstances were not witnessed by any other persons.

76. In written submissions the respondent submitted that the case of FZ was distinguishable from the present case because it dealt with the former working with children regime, the Child Protection (Prohibited Employment) Act 1998 (Repealed) and that it should only be applied in matters where similar facts were in dispute.

77. Amongst a line of cases addressing the admissibility of evidence Counsel referred to the case of J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 to indicate when the rules of natural justice might be flexible, such as where there was a provision of the legislature to specifically override a principle or common law right, or the import of the goal of a legislative scheme. The judgment of Brennan J. was referred to as follows:

9. The general principle which governs this case is clearly established. It is stated by Barwick C.J. in Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 in these terms (at pp 109-110):

" The common law rule that a statutory authority

having power to affect the rights of a person is

bound to hear him before exercising the power is

both fundamental and universal ... But the

legislature may displace the rule and provide for

the exercise of such a power without any

opportunity being afforded the affected person to

oppose its exercise. However, if that is the

legislative intention it must be made

unambiguously clear."

The principle governs the proceedings of administrative agencies and, a fortiori, the proceedings of the established courts: see per Dixon C.J. and Webb J. in The Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383, at p 396. That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings: see Reg. v. Ludeke; Ex parte Customs Officers' Association of Australia [1985] HCA 31; (1985) 155 CLR 513, at pp 520, 522-523,528,530. Like the Chancery jurisdiction in wardship, the jurisdiction of the Court under s.82 of the Act is to be exercised primarily for the benefit of the child and the exercise of that jurisdiction may require a determination as to the person in whose care the child should be. It may be said of the jurisdiction under s.82 what Lord Evershed said of the wardship jurisdiction in In re K. (Infants) (1965) AC 201, at p 219:

" The jurisdiction ... is surely ... very special,

and being very special the extent and application

of the rules of natural justice must be applied

and qualified accordingly. The judge must in

exercising this jurisdiction act judicially; but

the means whereby he reaches his conclusion must

not be more important than the end. The

procedure and rules ... should serve and not

thwart the purpose."

If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred, the application of those principles would have to be qualified: see Kioa v. West (Minister for Immigration and Ethnic Affairs) [1985] HCA 81; (1985) 60 ALJR 113, at pp 141,148-149; [1985] HCA 81; 62 ALR 321, at pp 370,383- 384. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; for example, it may be necessary to keep a welfare report confidential, as in In re K. and as provided for in s.89(3) of the Act. But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred: see Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986) 60 ALJR 528; 66 ALR 239.

78. The respondent provided a detailed submissions on this range of cases and line of authority for their proposition as to why the Tribunal should receive the evidence which the applicant opposed the proposed tender. Many of the cases were recent decisions of superior Courts including the High Court. However the context of the evidence in dispute in each matter was somewhat further removed from the current matter even than the facts in FZ.

79. We note that the Supreme Court has recently considered this question in the context of a very similar set of factual circumstances whereby material which did not result in a finding of guilt in the criminal standard, was objected to in the absence of the ability to test the evidence by examining the maker of such a statement.

80. The case of Children’s Guardian v BRL [2016] NSWSC 1206 revisiting the matters addressed in FZ. At Paragraph 36 Fagan J. observes:

36. I have considered carefully the reasons of Harrison J and of the Court of Appeal in the two FZ decisions earlier cited. My decision that the Tribunal has not erred in law by receiving these documents upon the limited basis which it did is in accordance with the principles and reasoning of those authorities. The decisions, both at first instance and on appeal, in the FZ case were made upon the predecessor legislation, the Commissioner for Children and Young People Act 1998 (NSW) (the “1998 Act"). I do not see anything in the differences between the Working with Children Act and the 1998 Act which would displace the application of the principles expounded by Harrison J and by the Judges of Appeal.

37. A difference between the two Acts which was relied upon by the plaintiff on the hearing of this summons is that the 1998 Act precluded a person from working in "child related employment" only in the case of conviction of certain offences. A person so prohibited – referred to in the legislation as "the prohibited person" – could apply to the Commissioner or to the Administrative Decisions Tribunal for an order declaring that the prohibition was not to apply to him or her in respect of a specified offence.

38. The 1998 Act did not prohibit work in child related employment on the ground of a charge which had been laid but had not proceeded to conviction. It did not contain the two-stage process by which an initial decision would be made (as by the Children's Guardian under the current Act) with the availability of a review by the Tribunal. There was no equivalent in the 1998 Act of s 30 of the Working with Children Act. I do not consider that these differences provide any relevant distinction which would permit me not to apply the reasoning of the Court of Appeal and of Harrison J in the FZ decisions. I take that view particularly because I consider that s 30 does not have the effect contended for by the plaintiff in the proceedings before me, as referred to at [33] and [34].

39. In the FZ proceedings, the prohibited person had pleaded guilty to one offence of a sexual nature committed when he was 17 years old. That was the basis upon which he was “a prohibited person” for the purposes of the 1998 Act. Subsequently an allegation had been made against him of sexual misconduct with a young person referred to in the proceedings as KB. It was established in the Tribunal hearing in that case that if the early offence to which he had pleaded guilty was the only matter then he did not pose a risk to children. On the other hand, if the allegations of KB were correct the risk assessment changed significantly, adversely to the applicant. The Tribunal had received hearsay evidence of KB’s allegations and she was not called to be available for cross-examination.

81. The present case has some similarities with BRL, in that some statements were tested at the hearing, but statements and other allegations which did not come before the Court were untested (as in BRL).

82. On the issue of the weight of the considerations of the beneficial nature of the legislation and the nature of the jurisdiction overriding fairness and natural justice, the Court observed the following:

33. I reject the plaintiff's contention that s 30 of the Working with Children Act required the Tribunal to receive the four statements as to the truth of their contents. It was argued that the statements were "matters that caused" the refusal of the clearance in this case, within the meaning of subpar (a) of subs (1) (See [17]). I interpret "matters" in that part of the statute as meaning the substantive issues of concern or allegations of past conduct, not the individual documents considered by the Children's Guardian. Even if subpar (a) of s 30(1) should be interpreted as referring to all of the documents considered by the Guardian when it acted as primary decision maker, s 30(1) would not have the effect, on my reading of it, that the Tribunal should take in all such documents as proof of the truth of assertions in them, thereby losing its power and duty to ensure procedural fairness in accordance with s 38(2) of the Civil and Administrative Tribunal Act.

34. I consider that the word "matters" in subpar (k) of s 30(1) of the Working with Children Act (again, see [17]) has a similar connotation. That is, it refers to issues, incidents or conduct of concern, not to individual pieces of evidence. Therefore, I do not think that subpar (k) required the Tribunal to receive these statements for all evidentiary purposes just because the Children's Guardian had considered them (I assume as evidence of the truth of their contents) and submitted that the Tribunal should take them into account for this purpose as well.

35. Section 27(4) of the Working with Children Act, requiring full disclosure by the defendant to the Tribunal, was not infringed by the defendant’s resistance to the use of the four statements as proof that he had sexual intercourse with his 12 year old niece in 1998. There was compliance as to disclosure because the statements of the four witnesses went to the Tribunal; the allegations against the defendant were thereby made known to the Tribunal. The Tribunal's decision to limit their use, upon the application of the defendant, does not equate to non-disclosure by the defendant.

83. At paragraph 49 the Court again observed the limitations of applying a beneficial aspect or paramount consideration as overriding a substantive requirement as to procedure. In this instance it was addressing the lack of any apparent explanation for the absence of the statement makers.

46. The submissions to this Court on behalf of the plaintiff sought to explain the absence of any such inquiries by repeated citation of s 4 of the Working with Children Act which stipulates that in the working of the Act the safety, welfare and well-being of children is the paramount consideration. This does not displace the need for the Children’s Guardian diligently to make inquiries relevant to its own decisions and to place the product of those inquiries before the Tribunal in the event of a review under s 27. On the contrary, in the pursuit of the welfare of children and the avoidance of risk of harm to them from a possible potential abuser, the “working of the Act” required in relation to the defendant investigations of the kind to which I have adverted. Such investigations might have shown that the circumstances of termination of the 1999 prosecution indicated residual risk. Without investigation one would not know. More to the point for present purposes, without the results of such inquiries being placed before the Tribunal it acted correctly in law, according to the FZ decisions, in receiving the four witness statements as evidence only of allegations.

84. In oral submissions the respondent made the following submission. That the respondent had no evidence that the applicant had done anything inappropriate towards children since 1991. However that is not the respondent’s case. The respondent’s case is that the applicant did the things as alleged and as corroborative evidence of this took the Tribunal to the statement of the complainant’s mother.

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.

85. The applicant's application to the Tribunal is brought about by an adverse risk assessment of him by the respondent. Those matters encompass the matters whereby the applicant was charged with indecent assault of a person under 16 years of age, and sexual intercourse with a child aged between 10 and 16 years. The first charge refers to having the complainant touch the applicant’s penis with her hand, and the second incident involved sexual intercourse in 1988 when they went out on a motorbike and had a swim in the river. They were disturbed by a car and proceeded to a different location where the serious allegations are said to have occurred.

86. The matters were reported to police in 1992, witness statements were taken by police and the applicant was committed for trial and then acquitted on all charges.

87. If these matters occurred they are serious matters, especially in respect of an individuals risk to the safety and well being of children.

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

88. The matters referred to in the risk assessment are alleged to have occurred in 1985 and 1988. The applicant has held a number of positions whereby he has performed child related work in the interim and he has never received any complaints or had any matters raised formally with employers, regulators or law enforcement bodies in the intervening period in respect of children and young persons.

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

89. The applicant was approximately 15 years old at the time of the first allegation and 18 at the time of the 1988 allegations, being the matters relevant to section 30 (1) (a) as alleged.

(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.

90. The victim / complainant in the section 30 (1) (a) allegations was approximately 8 and 12 years old at the time of the alleged conduct against her. The victim (if the allegations are true) is clearly vulnerable due to her age, the age and gender of the applicant, the fact that he was related and an older male. In addition the circumstances (as alleged) involved the applicant taking the complainant / victim to an isolated area where she would have been reliant on him to return to safety.

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

91. The difference in age was approximately 7 years between the applicant and the alleged victim / complainant.

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

92. The applicant was aware that the complainant was a child.

(g) The person's present age.

93. At the time of the hearing the applicant was 47 years of age.

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

94. The applicant does have a criminal record, which encompasses a stealing matter. The other matters recorded are all traffic matters including two matters for unlicensed driving. The stealing matter was dealt with by a bond and moiety. No relevant matters have come to light between the allegations and the application for a clearance, other than the charges (of which the applicant was acquitted) and the reports involving the other complainant / cousin, for which the applicant was previously unaware and no formal action was taken. These matters do not form part of the applicant’s criminal record in accordance with the Criminal Records Act 1991. Whilst there was reference to an ‘assault’ in the material, whether this matter resulted in a finding against the applicant is unclear from the material and as such it is disregarded for the purposes of this provision.

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

95. The Applicant provided a psychological report in support of his application from a Forensic Psychologist. That report concluded that the applicant posed an overall low risk to the safety of children. The report was tested during the hearing and the author noted the limitations on the current circumstances (in a stable and supportive relationship / setting, with a number of pro social criteria present). It was conceded that were this situation to change then any such assessment is subject to the usual dynamic factors and capable of change both in factors and overall risk. The Tribunal notes that there is no evidence of any matters coming to attention in the intervening period.

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

96. The applicant tendered an affidavit and an expert report in support of his application, and was subject to examination and extensive cross-examination at hearing. A large number of attestations of character and dealing with children appropriately were included in the material that the applicant submitted to the Children’s Guardian.

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

97. The respondent raised a number of issues in written submissions, concerning the admission of material objected to by the applicant, and matters as to the applicant’s overall risk. However it appeared to the Tribunal that the respondent had made a positive finding in respect of the criminal assault allegations (including those not tested). In our view it is clear from the respondent’s Statement of Reasons filed 28 August 2015, that the DPP and Community Services and Sex Crimes Unit material was significantly relied upon by the respondent in conducting the 2014/2015 risk assessment and reaching a fresh outcome adverse to the applicant. In this regard it appears to have been critically determinative in reassessing the applicant’s risk, from being assessed as not posing a risk over 10 assessments from 2003 to 2010, and now being assessed as a risk. The respondent has now (as it would appear) made a positive finding against the applicant, that the offences occurred and as such the applicant poses a real and appreciable risk.

98. In the absence of any other matters arising between the earliest risk assessments in 2003 until 2010, and the current assessment the only conclusion that can be drawn is that the respondent has determined the matters did occur. This position appears consistent with counsel’s oral submission (at paragraph 84 above).

Consideration

99. In our view the applicant was consistent in his evidence and answers. The applicant's overall denials of the conduct were consistent and withstood cross-examination. The respondent did not lead any evidence from a witness.

100. The Supreme Court has recently revisited the correct approach that the Tribunal should take when making a finding on otherwise unproven allegations, and then moving to the substantive consideration of risk.

101. In the matter of Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Harrison J. observed the following concerning the approach arising from observations made in BKE.

The statutory test

13.The test in s 18(2) of the Act requires a decision maker to consider whether a person “poses a risk to the safety of children”. “Risk” in this context excludes “fanciful or theoretical risk” and instead requires a decision maker to determine “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”: Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children’s Guardian [2015] NSWSC 523 at [33].

14.The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a “decisive impact” on the outcome of the application.

15.The second proposition is that, even if no such “positive finding” can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is “groundless”. The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:

“... determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child’s welfare.”

16.Even if not positively satisfied that the acts occurred on the balance of probabilities, if “a lingering doubt or suspicion remains” then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41].

17.A court or tribunal may make a finding of “real and appreciable risk” even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left “open”, the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.

102. Whilst we note His Honour’s comments at paragraph 14 of the decision, that a positive finding will generally have a decisive impact on the outcome of the application (ie: whether there is a relevant risk), we observe that the legislature contemplates risk assessments for a range of allegations and proven matters in accordance with Schedule 1 of the Act. In addition, Schedule 2 provides that whilst the more relevant proven offences (from a risk to children perspective) are mandated as ‘disqualifying offences’ and create a presumption that those applicants subject to a disqualifying proven offence are presumed to be a risk, we again note that the legislature provides for the making of enabling orders by the Tribunal in appropriate circumstances. Clearly in those matters, the substantive issue of risk, and it’s relevant evidentiary considerations override or overcome the totality of any Schedule 2 conviction in matters where an enabling order is granted.

103. In this regard proven matters and / or positive findings may be decisive to an application, or they may not. Clearly a proven matter for a Schedule 2 offence carries a greater constraint on the ability for an applicant to mitigate or obviate risk to a standard below that of a ‘real and appreciable’ risk. In our view His Honour clearly contemplated such an approach when using the term ‘generally’ at the conclusion of paragraph 14.

104. At the conclusion of paragraph 17 His Honour observes that:

A court or tribunal may make a finding of “real and appreciable risk” even though it is not satisfied on the balance of probabilities that the relevant conduct occurred.

105. In our view, on the evidence and material before us, and having regard to the weight of evidence, we make a finding that the conduct of which the applicant has been accused did not occur. In this regard we note that the evidence objected to by the applicant was sought to be received in respect of evidence that the allegations were made, and not evidence that the allegations have a factual grounding. The applicant’s evidence in written and oral statements are that the matters alleged did not occur. The denials were consistent and the applicant sought to be able to examine the makers of the statements and have their evidence tested at the hearing. As set out earlier in the decision the respondent has not provided any practical reasons as to why the evidence cannot be tested, other than a submission that the statements were made a considerable period of time (over 33 years) ago. In this regard we infer that the respondent is submitting that the evidence could not be tested in any meaningful manner due to its age, and the failings of human memory. In making this observation or inference we note that no other grounds or reasons are given on that point by the respondent.

106. Specifically the respondent submits that there would be no prejudice to the applicant because in respect of the allegations which went to Court, the complainant’s evidence was tested by being subject to cross-examination. For the purpose of determining whether to receive the contentions evidence / material without limitation we have considered it in some detail. We note that under cross examination the evidence of the complainant became somewhat less reliable in that there were serious discrepancies and uncertainty concerning the dates that the conduct was alleged to have occurred.

107. Dates of 1990, 1991 and 1988 and on occasion 1987 are in the general mix of the material before the Tribunal concerning the allegations for which a prosecution was commenced. Whilst the respondent submitted that other witnesses corroborate aspects of the circumstances of the allegations, other witnesses (including adult witnesses, and witnesses older than the complainant), do not provide evidence consistent with aspects of the allegations.

108. Whilst the complaint had earlier reported that the incidents occurred in 1990, in her evidence at the hearing under cross-examination she was adamant that the matters occurred in 1988. However the complaint conceded that 1987 may have been a relevant date for the incident (by the river).

109. The complainant was significantly inconsistent in the dates that she alleged the assaults occurred, with all earlier statements (including a medical certificate following a presentation, examination and history) alleging assaults in the nature of unlawful sexual intercourse, occurring in 1990, late 1990. However in cross-examination the dates moved two years earlier to 1988.

110. The expert statement of medical evidence records an examination in early 1991 where the complainant reports an assault some 4 months prior. Whilst the statement refers in basic terms to a physical / visual examination of the genitalia at paragraph 5, at paragraph 7 an opinion is offered based on the physical findings. In that regard the Tribunal infers that the findings are that penile vaginal intercourse occurred with the complainant in late 1990. Obviously no medical finding is made as to the identity of the male.

111. However all of this is unsettled by the fact that under oath the applicant states that her 1990 assertions were a mistake and the assault(s) occurred in 1988 (or possibly 1987). When the earliest allegations (of indecent assault) are examined, and the assertion that the matter occurred when the applicant was seven about to turn eight, further doubt is cast in respect of the later more serious allegations (by the river).

105. In respect of the allegations of the cousin which first came to the applicant’s knowledge during these proceedings / process, in our view they are also afflicted with a similar deficiency as the substantive allegations referred to above. In our view it would be unfair to place any weight on them, in such circumstances where the allegations (Page 151 of the respondent’s bundle) have merely been asserted in these proceedings from a previously unknown report, and denied by the applicant.

106. We make this observation on the basis that there was no evidence that the applicant was untruthful or deliberately evasive in his answers, and in that regard has (in our view) satisfied the requirement of section 27 (4) of the Act. In his answers in a police record of interview on 16 June 1992 the applicant denies all allegations including giving the complainant a ride on a motorbike, but admits to riding a motorbike at the property on many occasions ( (A) 37 Page 58 Respondent’s Bundle). This record of interview is consistent with the applicant’s Dock Statement at trial (Page 16 Respondent’s Bundle).

107. Therefore in our view, in respect of the reported allegations of the complainant which went to court and accompanying evidence, the appropriate course is to receive the Court material, but for the reasons set out above, we find them unreliable and make a finding that the allegations (as alleged), did not occur. In making this finding, we are not stating that the applicant has not ever engaged in unlawful behaviour (including behaviour towards children), merely that after rejecting those matters as having occurred (to the balance of probabilities standard), we are unable to place anything other than minimal weight on his young adult behaviour possibly posing a risk to children. The comments as to whether the applicant has ever behaved unlawfully (including towards children) arise because of our finding that in the respondent’s material there is insufficient evidence, to be satisfied that it is more likely than not that anything inappropriate occurred. No doubt some individuals present a risk to the safety and well-being of children, however in this matter, we find that there are no criminal allegations which support such a view in respect of this applicant. The remainder of the material objected to by the applicant is received on a limited tender as proof of allegations being made.

108. In analysing the Brief material we are cognisant of the vulnerability of child victims of crime (and any victim of crime), and mindful of the protective matters concerning vulnerable victim testimony, statements and the need for communication privilege. In addition we are mindful of the purpose of the child protection regimes and the Act, however the task of fact finding (where possible), is a separate task, albeit a precondition or starting point for assessing risk, as per paragraph 13 of CFW.

109. Other than the charges which caused the risk assessment trigger, and the other criminal allegations concerning children as set out above, there was minimal material placed before the Tribunal which indicated any level of real or appreciable risk. The expert report concluded with a mitigated level of potential risk, and that this was somewhat embedded in the applicant’s current protective and stable relationship with his spouse.

110. The section 58 material included a large amount of material provided by the applicant for earlier clearances, and as part of the current risk assessment process. As the respondent conceded the applicant has no allegations or other adverse material which involves his dealings and interactions with children, and we note that these matters encompass over 20 years where the applicant has had professional interactions with children.

111. If the charges were not present, having received the expert report in respect of drug, alcohol and gambling behaviour, and noting the applicant’s evidence in chief and answers under cross-examination, then in our view there is no cogent evidence or material identified during the hearing and examination of the evidence which goes to establishing any relevant level of risk. There is no continued pattern or similar allegations after the matters that arguably concluded in 1990, and we have already found in respect of those matters.

112. Whilst it is necessary (as a precondition) for the Tribunal to make a finding on the allegations (where possible) which caused the risk assessment, our real task is to consider any material (finding or otherwise), in the context of whether the applicant poses a risk, having regard to all of the material before the Tribunal. It is evident that if it was open to the Tribunal to make a finding (on the basis of the evidence and material before the Tribunal) that the allegations occurred on an assessment to the applicable standard required of the Tribunal, then that would in all likelihood elevate the risk and cause significant concerns about the import of the granting of any clearance. However we have not made such a finding. (See paragraph 114 above). Obviously if the applicant (or any individual) engaged in such behaviour as alleged) it would pose a serous risk to children.

113. 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. We have had particular regard to the manner in which the applicant gave his evidence, and the consistency of his evidence in respect of the substantial issues in assessing risk to children.

114. All material has been referred to above, was considered to differing extents having regard to the applicable weight that can be attributed to it, in determining the major issue for determination, whether the applicant poses a real and appreciable risk to the safety of children and young persons.

115. In our view, on the evidence and material before us, the applicant does not currently pose a real and appreciable risk to the safety of children and young persons, and we find accordingly. In our view the risk is neither real, nor appreciable, and neither is there sufficient evidence before us to the requisite standard that there is any real likelihood of future risk.

Conclusion

123. For the reasons set out above, we reach the following conclusion.

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

125. 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.

126. 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.

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

128. It therefore follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian.

Orders

1. The decision of the Children's Guardian dated 4 February 2015 to refuse to grant the applicant a clearance is set aside.

2. The respondent is to grant the applicant a Working with Children 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

Amendments

27 October 2016 - [70] corrected typographical error

[99] corrected typographical error

Decision last updated: 27 October 2016