CFJ v Children's Guardian

[2016] NSWCATAD 62

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CFJ v Children's Guardian [2016] NSWCATAD 62
Hearing dates:	21 January 2016
Date of orders:	08 April 2016
Decision date:	08 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member D Kelleghan, General Member
Decision:	1) The decision of the Children’s Guardian dated 16 October 2015 to cancel the applicant’s Working with Children Check clearance under section 23 Child Protection (Working with Children) Act 2012 is affirmed.  2) The application for review of the decision of the Children's Guardian filed 22 October 2015 is otherwise refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal – cancellation of clearance under section 23 Child Protection (Working with Children) Act 2012-assessment trigger by notification of concern by Ombudsman under clause 2A of Schedule 1 to the Child Protection (Working with Children) Act 2012- whether the applicant poses a risk to the safety of children - dismissal from employment as a High School teacher- subsequent wrongful dismissal proceedings settled - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse to allow the applicant to hold a working with children clearance.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and Protection) Regulation 2012 Civil and Administrative Rules 2014 Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) Ombudsman Act 1974 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BGX v Children's Guardian [2014] NSWCATAD 173 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 BZU v Children’s Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CFJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: G Mahony (Respondent)   Solicitors: Mr A (Agent for the Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510659
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any children or victims, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

Judgment

Introduction

1. The applicant, known as “CFJ” in these proceedings, on 22 October 2015 filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning a decision of the Children’s Guardian, made on 16 October 2015, to cancel his Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

2. The Act came into force on 15 June 2013. The parties correctly conducted the hearing and made submissions on the basis that the amendments introduced into the Act in 2015 do not apply to this particular matter.

3. The applicant applied for a working with children check clearance on 30 January 2015. The applicant was granted a clearance to work with Children on 9 February 2015. However, on 6 March 2015 the NSW Ombudsman made a formal notification of concern to the Children’s Guardian pursuant to the Ombudsman’s functions and responsibilities. Such a notification triggers an assessment requirement pursuant to section 14 of the Act because that notification comes within clause 2A of schedule 1 to the Act. The Children’s Guardian then determined pursuant to section 23 to cancel the applicant’s working with children check clearance on the basis that after an assessment pursuant to section 15 of the Act the Children’s Guardian is satisfied that he poses a risk to the safety of children.

4. The reason for the notification of concern by the Ombudsman is that the applicant was alleged to have accessed Internet sites depicting pornographic images of females who appeared to be under the age of 18, engaging in sexual acts (it is assumed with males and females some of whom are of similar appearance of age) and/or exposing their breasts or genitalia. As will be referred to in more detail later in these reasons, the applicant accessed a number of Internet sites which are of concern because of his role as a high school teacher of students who would fall within the category of “teens” or “schoolgirls”. The Internet sites which it is alleged the applicant accessed were described with such epithets.

5. Following the notification of concern by the Ombudsman, the Children’s Guardian determined to issue an interim bar on 15 April 2015 about which the applicant was notified on 16 April 2015. This interim bar was discharged upon the notification of the cancellation of the working with children check clearance by letter dated 16 October 2015.

6. In that letter from the Children’s Guardian to the applicant dated 16 October 2015 which also provided reasons of the same date, the applicant was informed that the Children’s Guardian decided that he poses a risk to children. The applicant wishes to continue to be employed as a school teacher. The applicant is without a Working with Children Clearance now, preventing him from working in “child-related work”: section 6(2)(g) and section 8 of the Act; clause 10 of the Child Protection (Working with Children) Regulation 2013.

7. The applicant was represented by an agent of his choice with leave of the Tribunal. As far as the Tribunal is aware this person is not legally qualified. The Tribunal treated the applicant and his agent as unrepresented litigants and explained to them during the course of the hearing the process, and the legal requirements, particularly those imposed by the legislation. The application for review was heard by the Tribunal on 21 January 2016.

8. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

9. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

10. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

11. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children’s Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.

12. In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.

13. It is doubtful that the Tribunal may lawfully attach conditions which would be permitted by the legislation effectively to the grant of a conditional clearance for this and the additional reasons set out in this decision.

14. An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

15. The Tribunal has been assisted by the oral submissions of the parties. The applicant and his agent both made oral submissions with the agreement of the Tribunal.

The evidence relied upon in the hearing

16. The applicant relied upon the following documentary material:

1. Application filed 22 October 2015 including letter dated 16 October 2015 and reasons from the Children’s Guardian, Statutory Declaration by the applicant (unsigned and undated), correspondence from the applicant dated 22 January 2015 to the applicant’s employer-Exhibit A1;

2. Bundle of Documents filed on behalf of the applicant on 2 December 2015 containing part of an expert report prepared for the benefit of the applicant in wrongful dismissal proceedings (undated)-Exhibit A2;

3. Psychological assessment prepared by Dr Clifford J Powell, clinical psychologist-Exhibit A3;

4. Final Submission document filed 18 January 2016-Exhibit A4.

17. The respondent relied upon the following documentary material:

1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 19 November 2015, comprising 4 volumes and 1804 pages - Exhibit R1;

2. Volume of documents replacing documents behind Tab 28E of Volume 3 of Exhibit R1 containing more complete references in the tables, comprising 79 pages- Exhibit R2;

3. Submissions for the respondent dated 7 January 2015 and filed 11 January 2015 - Exhibit R3.

18. The applicant gave oral evidence and was cross-examined on 21 January 2016. The applicant’s psychologist, it was explained, was not available for cross examination due to his participation in a conference in Thailand. The report Exhibit A3 was received into evidence and submissions were made by the respondent as to the weight which should be given to the expressed opinions.

19. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.

20. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

21. The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

22. The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous two paragraphs of these reasons is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

23. The practical or forensic onus but not the legal onus is thus carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

24. The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

25. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is identified for the parties.

26. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

"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."

27. There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units.”

28. The objects of the Act are set out in section 3 which provides:

"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."

29. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."

30. Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows:

“14 Assessment requirements

A person is subject to an

"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.”

31. The applicant was properly the subject of a risk assessment due to the notification by the Ombudsman pursuant to clause 2A of schedule 1 of the Act which reads as follows:

2A Notification by Ombudsman

(1) A person has been the subject of a notification of concern to the Children’s Guardian by the Ombudsman that, on a risk assessment by the Children’s Guardian, the Children’s Guardian may be satisfied that the person poses a risk to the safety of children.

(2) A "notification of concern" is a notification made by the Ombudsman as a result of concerns arising from the receipt of information by the Ombudsman in the course of exercising the Ombudsman’s functions.

32. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.

33. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

34. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

35. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

36. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

37. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, 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].

38. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

39. The Tribunal is guided by the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

40. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33]. It is useful to set out the reasoning behind the Tribunal’s determination in this decision.

41. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.

42. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.

43. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.

44. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.

45. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

46. In the following paragraph the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

47. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and with approval in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.

48. In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states:

"Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."

49. If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.

50. It is the Tribunal’s assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

The Issue

51. As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

52. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

53. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

54. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

55. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.

56. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.

57. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.

58. Section 15 of the Act provides as follows:

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

(4) In making an assessment, the Children’s Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

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

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

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

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

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the matters occurred,

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

(j) any information given in, or in relation to, the application,

(k) any other matters that the Children’s Guardian considers necessary.

(5) The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.

59. Section 30 of the Act provides as follows:

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

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

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

(k) any other matters that the Children’s Guardian considers necessary.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

60. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.

61. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.

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

62. The applicant is not a disqualified person.

62. The matters which caused the cancellation of the applicant’s clearance are at a high level of seriousness.

63. The applicant is a qualified high school teacher with 19 years’ experience and was teaching at a private school between 27 January 2006 and 9 December 2014: Exhibit R1 page 1431. The school is coeducational.

64. A final Investigation Report to the Ombudsman was prepared by the school. In that report it is recorded that it was determined that the applicant “may have engaged in ‘reportable conduct’ as defined in section 25A of the Ombudsman Act 1974”. The referred to definition of “reportable conduct” is as follows:

"reportable conduct" means:

(a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence or an offence involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900 )), or

(b) any assault, ill-treatment or neglect of a child, or

(c) any behaviour that causes psychological harm to a child,...

66. The meaning of ‘child abuse material’ in the Crimes Act 1900 (for Division 15A of Part 3) is as follows:

“91FB Child abuse material-meaning

(1) In this Division:

"child abuse material" means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child.

(2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and

(b) the literary, artistic or educational merit (if any) of the material, and

(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and

(d) the general character of the material (including whether it is of a medical, legal or scientific character).

(3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).

(4) The

"private parts" of a person are:

(a) a person’s genital area or anal area, or

(b) the breasts of a female person.”

67. The Tribunal previously considered an application under section 28 of the Act in which the applicant pleaded guilty to the possession of animated cartoons (which were saved on his computer) that because of their sexual content and implications clearly fell within the definition of “child abuse material” as set out in the Crimes Act 1900 (NSW): BGX v Children's Guardian [2014] NSWCATAD 173.

68. In BGX v Children’s Guardian, a psychiatrist, Dr Westmore, gave evidence which is considered in the judgment as follows at [50]-[54]:

“[50] It was considered by Dr Westmore that the cartoons were more likely a fetish rather than a paraphilia. The risk of "hands off" reoffending rather than "hands on" is a possibility. It was acknowledged by Dr Westmore that the viewers of the "hands off" child abuse material leads to a market which encourages "hands-on" child abusers. The inability to diagnose or label the applicant's behaviour as paedophilia does not address the risk the applicant may pose to children by participating in the child pornography industry, or the risk he may pose more generally. It does not inform the Tribunal whether the possibility of reoffending behaviour re-emerging.

[51] Most importantly, Dr Westmore agreed that if the applicant was accessing images of underage children for his sexual stimulation, then he would review his opinion concerning whether the applicant would be classified as meeting the criteria for a diagnosis of paedophilia and conduct a further review of the risk assessment. The risk would increase of returning to use that type of material, if that material were to be accessed for the purpose of sexual stimulation.

[52] When the applicant was cross-examined he agreed that he used the material he downloaded for his sexual fantasies. The applicant also conceded that the content of the cartoon material was deviant from 'normality'. The applicant stated to the Tribunal that his understanding of the Japanese word which describes some of the cartoons "hentai" is 'pervert'. This was similar to his responses in his record of interview. The applicant showed a familiarity with the nuances of the abusive material which makes it difficult to accept that he did not know it was an offence to possess this material. It is reasonable to conclude that the applicant accessed the material which was found on his computer drive for the purpose of sexual stimulation. The applicant's knowledge of this genre of pornography appeared to be extensive. Dr Westmore's opinion must be reconsidered in the light of the applicant's statements in cross-examination.

[53] Interestingly, Dr Westmore was of the opinion that many people who are exclusively "hands off" users/viewers of child abuse material, which tends to be video focused, tend to remain "hands off". Dr Westmore considered that many people start off with "hands off" behaviour and appear not to progress beyond that type of child abuse behaviour. Of course, others do so progress and the users of "hands off" material encourage actual abuse of children by creating a profitable market.

[54] Dr Westmore was of the view on the material he was provided and the disclosure obtained from the applicant that the risks of the applicant accessing further material of this nature is very low due to the impact on the applicant of being charged and the loss of, and threat to, his employment. The deterrent component is there to reduce the applicant's risk. Additionally, although Dr Westmore agreed he could never say "never" in terms of the recurrence of offending behaviour, the risk of "hands-on" child abuse by the applicant, in his opinion, is negligible. This risk and the prediction of future risk is modified by the evidence of the applicant himself concerning the use which he made of child abuse material. The applicant appeared from his answers in the record of interview with the police and his cross examination to seek material for his sexual gratification which included images and video of very young people. The applicant has apparently not undertaken any form of self-development to address this particular aspect of his personality.”

69. The nature of child abuse material is not confined to photographic representations and animated sexual cartoons may constitute child abuse material. The appearance of the subject person looking like a child, or implied to be a child, is a relevant element of the definition which establishes an offence. The victims of exploitation for the purposes of pornography provide income for the pornography industry. Without consumers for that pornography that industry would not exist. Consumers of pornography, as explained by Dr Westmore in BGX v Children’s Guardian, therefore provide a financial incentive for exploitation of sexual material which includes the images of young people who look like they are under the age of 18 years.

70. The applicant has not been charged with any criminal offence relating to possession of child abuse material. It has not been alleged that the applicant saved any images to his computer which could be considered child abuse material. The applicant did look at websites which contain images of young persons who appear to be under the age of 18 and implied to be teens or under the age of 18.

71. The referral of the report by the school to the NSW Ombudsman is not open to review in these proceedings. The applicant in his submissions took issue as to whether any reportable conduct occurred. It is the decision of the Children’s Guardian which is under review in these proceedings. The risk assessment undertaken by the Children’s Guardian was appropriately triggered by the action of the Ombudsman as previously identified in these reasons. The question to be considered is what is the correct and preferable decision having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant.

72. The allegation against the applicant is formally stated to the applicant by his employer in a letter dated 7 July 2015, at Exhibit R1 pages 1398-1399; 1706-1707, is extracted in the material and reads as follows:

“It is alleged that regularly and repeatedly over a period of approximately five months in 2014, on a [school] issued laptop allocated to you, you accessed websites containing pornographic material that included young people under the age of 18 as the subjects. Such conduct constitutes sexualised behaviour towards, and involving, young people that you knew or ought to have known was unacceptable in your role as a secondary teacher. Further, there were descriptors on these websites, and either the URL, the title or both, containing the words ‘young’, ‘teen’, ‘girl’, ‘schoolgirl’ or ‘college girl’.

73. In a letter dated 17 August 2015 sent by email to the applicant, Exhibit R1 pages 1734-1735, the allegation is repeated and the following explanation is added:

The basis for the allegation is as follows:

The malware logs from the laptop, contained the word ‘young’ 39 times, ‘teen’ 42 times, ‘girl’ 40 times and ‘schoolgirl’ 16 times. 42% of the sites that triggered the anti-malware software are of concern to [the school] as the descriptors are of young person pornographic sites.

The laptop has been forensically examined. That examination supports the malware logs in showing young person pornographic sites were accessed from the computer. These sites are labelled as ‘teen’ (3,472 instances), ‘girl’ (1,230 times) or ‘school/college girl’ (458 times) in either the URL, the Title, or both; in addition, many contain the word ‘young’ (458 times). There are also large page headings on the majority of URLs examined that designate the content as young person pornography. Forensic evidence shows that the majority of these sites were accessed by following a link and on average 1.6 minutes was spent browsing each URL.

There is no evidence or suggestion that anyone other than you had possession of or access to the laptop concerned. At no stage did you report your laptop as missing and your logon details are unique to you. Accordingly the school has concluded that the above evidences your conduct.”

74. The applicant states in his material that he never looked for the word “teens” or “schoolgirls” on the Internet: Statutory Declaration declared on 10 June 2015 at [12] Exhibit R1 pages 89-90; part of Exhibit A2. That is not what the allegation records.

75. The applicant relies upon the extracted parts of the report from the expert commissioned for the unfair dismissal proceedings he instigated to contradict the assertions referred to in the allegation against him. Neither of the experts who conducted the computer analysis was required for cross-examination by the parties in these proceedings. Indeed, those reports were prepared for the purposes of other proceedings and not for the purposes of this application. The qualifications of the particular experts were not put in dispute by either of the parties. The expert utilised by the school is a Ph.D. and has a specialty in digital forensics with an impressive curriculum vitae, and the report by the expert retained for the applicant also contains his detailed and impressive curriculum vitae: Exhibit R1 pages 1667-1671 and 1709-1718 for both curriculum vitae. Both experts agreed to abide by the relevant Expert Code of Conduct which is Practice Note CM7 in the Federal Court of Australia. This is similar to the Code of Conduct which applies in the Tribunal.

76. The statement and original report of the forensic computer expert retained by the lawyers for the school is at Exhibit R1 pages 159-738. The supplementary report is located at Exhibit R1 pages 739-845. This supplementary report responds to the report produced for the benefit of the applicant in those same unfair dismissal proceedings. In essence, the supplementary report identifies that the vast majority of visits to particular websites under consideration was by clicking a link on another page and not by auto redirection or a pop-up. In relation to a specific site with the word “teen” contained within it, there were 24 visible images and according to the browsing history had been visited 104 times and the particular URL had been typed 111 times: Exhibit R1 page 741. The supplementary report identifies that of the 1,144 webpage visits to pornography web pages from the Google Chrome history only one was “typed”. The vast majority were linked because the user arrived on that page by clicking a link on another page not using an auto redirection or a pop-up. The fact that the applicant may not have typed the words does not mean that he did not follow the links to websites showing young person pornography: Exhibit R1 pages 740, 743-840. The applicant submitted that the “Lolita picture was not searched for but was viewed by the applicant as a consequence of clicking on a picture in an adult site which then produced an image set in which the word “Lolita” was one of the many words in the title”: Exhibit A2. The expert’s supplementary report is partially validated by the words of the applicant.

77. The applicant’s computer expert stated in his report: “To be clear, I do not disagree that the listed web pages were accessed from the two computers. Rather, I believe it is incorrect to conclusions (sic) about the Applicant’s deliberate access to web pages, let alone his intentions, without further analysis”: Exhibit R1 page 1636. The report is reproduced in Exhibit R1 pages 1629-1666. The two computers referred to are the ones used by the applicant.

78. There was an investigation conducted by the school and the report written as a result of the investigation was provided to the Ombudsman and is before the Tribunal as evidence: Exhibit R1 pages 1397-1804.

79. The applicant was allocated two laptop computers because his supervisors and peers were frustrated by the number of times he came to work without an operating computer. The computers were subject to ongoing infection by malware and required attention from the IT staff: Exhibit R1 pages 1441-1442. The applicant was informed by letter that due to the frequency of infection of the computers allocated to him with virus or malware an investigation was conducted and revealed that a large number of pornographic sites have been accessed from the applicant’s allocated computers: Exhibit R1 page 1446. It was revealed that malware threats had been blocked on over 300 occasions due to access to inappropriate sites from the computer when the applicant was the active user between February 2014 and November 2014. That letter requested a number of responses from the applicant to specific questions posed by the Principal of the school.

80. In his written response to those questions the applicant admitted accessing pornographic material from his work computer out of hours which he said gave him “a sense of sexual satisfaction”: Exhibit R1 page 1458. The reason the applicant used the work computer is said by him to have occurred because when his own “personal computer stopped functioning the temptation to use [the] work computer became too much...”: Ibid.

81. In mitigation of his behaviour the applicant wrote, at Exhibit R1 page 1459:

“The mitigating circumstances are that I am a single male with a normal sex drive which at present is unable to be expressed in a marriage relationship, resulting in continual sexual frustration. I am hoping the school may understand that the male sex drive is a powerful urge in most men and in the absence of having a wife or seeing one’s wife naked of course gives one the desire to appreciate beauty in the female form. I believe this is a God-given drive. Normally this drive is channelled towards a wife which unfortunately at present I don’t possess. I have never viewed looking at the female form as being unnatural. It is part of what attracts men towards the opposite sex and marriage. I admit that using the school computer is a breach of my employment contract however I hope that the school may understand that at no time were any sites accessed at school but in the privacy of my own home on my own network not the school’s network.”

82. The applicant has not been in a marriage relationship for approximately 15 years. During the hearing the applicant conceded that he had used sex workers to satisfy his sexual desires a number of times. The applicant now resiles from his admission to accessing pornography. The applicant submits that he was naive and did not know that the images he was viewing were in fact not ‘pornographic’ but simply naked images of women. The applicant submits that little weight should be given to his admissions in the correspondence which has been extracted. The respondent submits that the applicant’s submissions in that regard should be rejected.

83. The fact that the applicant admitted that he gained sexual satisfaction from viewing the visual representations of naked women and apparently young persons identifies that the material is pornographic. It could also be said that the material is erotic in intent.

84. The applicant previously admitted that he used the word “girls” in his searches: Exhibit R1 1532. The explanation he offers is that the word is used as a synonym for women. The respondent submits that this construction should be rejected and that the applicant was looking for images other than “women”: Exhibit R3, page 4 [19]. The tribunal prefers the respondent’s submission.

85. The respondent submitted that on the balance of probabilities the evidence adduced establishes that the applicant has searched for and/or accessed pornographic sites and other websites that have depicted images of teenage females or adult females who appear teen-like, and images of females depicted as schoolgirls. Additionally, it was submitted that the applicant achieves sexual gratification in viewing images of teenage females or adult females who appear teen-like and images of females depicted as schoolgirls. Thirdly, it was submitted that the applicant has no insight into his conduct and denies his sexual interest in images of teenage females or adult females who appeared teen-like and images of females depicted as schoolgirls.

86. The applicant’s expert in the unfair dismissal proceedings agreed with the other expert that five web pages visited by the applicant which included the term “Lolitas” in their title can be considered “parlance for material depicting underage girls”: Exhibit R1 page 45. Other web pages accessed by the applicant with titles that include phrases such as “schoolgirls”, “young girls”, “young teens”, “young virgins”, “models 16” and “innocent” according to the applicant’s expert, are not evidence of the existence of illegal material, but such pages with those titles “may contain sexual images of children under the age of 18.”: ibid.

87. It is clear from the submissions made by the applicant and on his behalf by the agent, that there is a deliberate process of minimisation and deflection from the extent of the applicant’s use of pornography to satisfy his sexual appetite and relieve his “continual sexual frustration”. The fact that the applicant has visited web pages containing references to ‘young’, ‘teen’, ‘girl’, ‘schoolgirl’ or ‘college girl’ cannot be validly disputed on the evidence of the computer experts and the admissions of the applicant. The submission of the applicant concerning the distinction drawn between pornography and naked images is tendentious.

82. The obvious concern held by the school Principal was that the applicant by regularly accessing pornography which refers to young people who are teenagers or schoolgirls and represents and implies that they are within that age group by their appearance, and does not frankly acknowledge or have exhibited sufficient insight into his behaviour, poses an unacceptable sexual and psychological risk to students in his care and under his direction as a teacher.

83. On the balance of probabilities the applicant has searched for and/or accessed pornographic sites and other websites that have depicted images of teenage females or adult females who appear teen-like, and images of females depicted as schoolgirls.

84. On the balance of probabilities the evidence establishes that the applicant achieves sexual gratification in viewing images of teenage females or adult females who appear teen-like and images of females depicted as schoolgirls.

85. The applicant has limited insight into his conduct and denies his sexual interest in images of teenage females or adult females who appeared teen-like and images of females depicted as schoolgirls. The conclusion by the Principal that the applicant therefore poses an unacceptable sexual and psychological risk to students in his care and under his direction as a teacher, appears well founded.

The period of time since those matters occurred and the conduct of the person since they occurred

92. The time which has elapsed since the conduct which led to the report to the Ombudsman is just over one year.

93. Since that time the applicant has not been employed as a teacher. The applicant has not been reported to have engaged in any behaviours which adversely reflect upon his capacity to be employed as a teacher.

The age of the person at the time the offences or matters occurred

94. The applicant was aged 54 years old at the time of the discovery of the incidents leading to the termination of employment at the school. The applicant had been accessing pornographic material on the computers during the course of the previous 5 months.

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

95. The images accessed by the applicant were assessed by a doctor utilising the Tanner staging and some of the images were considered to be of females under the age of 18 years. Over half of the images were assessed to be under 16 years of age and 89 percent of the females looked under the age of 18 years. There were 9 URLs which contained images of very young females. This assessment could not be applied to many of the images because the pubic area was shaved of hair or penetrative acts obscured the pubic area.

96. The applicant disputes the validity of using Tanner staging to assess the age of the various pictures of the models posing for the pictures accessed by the applicant. The relevant fact, which the applicant cannot validly dispute, is that a majority of the models looked under the age of 18 years. That is sufficient to put the ages of most of the models if considered as ‘victims’ as the age of children under the Act. The issue of consent does not arise if the models are under the age of 18 years. They are victims of exploitation by the pornography industry if they cannot consent to their images being used in a sexualised forum to achieve profit for the pornography industry. Without consumers for that pornography that industry would not exist. Consumers of pornography, as explained by Dr Westmore in BGX v Children’s Guardian, therefore provide a financial incentive for exploitation of sexual material which includes the images of people who look like or it is implied that they are under the age of 18 years if they are not in fact under the age of 18.

97. The applicant was employed as a schoolteacher and his students were also almost exclusively under the age of 18 years. The students are vulnerable due to their ages and limited life experience and are expected if not required to obey and respect their teachers. The applicant was in a position of trust and significant influence over his students.

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

98. The difference in age between the applicant and those depicted in the websites is submitted by the respondent to be between 26 to 30 years.

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

99. The applicant ought to have known or could reasonably have known that many of the images he accessed were of young people who were under the age of 18 years or were presented as being under the age of 18 years.

The person’s present age

100. The applicant is currently 55 years old.

101. The applicant has been separated from his former wife for many years. There is no evidence before the Tribunal that he has re-formed any adult sexual relationship. The applicant is currently unemployed. These are usually considered as dynamic risk factors in an assessment of risk. In other words, these are factors which tend to increase the risk of repetition of the behaviours which are considered an unacceptable risk of harm.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

102. The applicant does not have a criminal record.

103. There are no offences for which the applicant has received a conviction or for which he has been discharged by a Court.

104. The applicant denies any wrongdoing in accessing sites containing images of females described as “teen”, “schoolgirl” or other nomenclature to imply that the images are of persons under the age of 18 years. The applicant has sought counselling from Clifford J Powell, clinical psychologist who has provided a report.

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

105. The applicant relies upon the evidence of himself, his references and the report of the expert commissioned for the purposes of an unfair dismissal claim to establish that he is not a risk to children. The applicant also relies upon the report by Mr Powell with whom he has sought counselling pursuant to a Mental Health Care Plan issued by his general practitioner because the applicant was struggling with “generalised anxiety and depression”.

106. The Tribunal is aware of the caution which should be attached to risk assessments and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children’s Guardian [2016] NSWCATAD 3 at [91]-[92].

107. In essence, what expert witnesses in this Tribunal have stated is that prediction of a relatively uncommon behaviour such as sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and “gut feeling” play a determinative role in making a judgment.

108. Because the applicant has not been charged with any offence, nor has he been convicted of any offence, many if not all of the actuarial risk assessments are not applicable.

109. The applicant has seen Mr Powell for 11 counselling sessions between 2 December 2014 and 25 November 2015, according to the report in evidence: Exhibit A3. The focus of the counselling has been to help the applicant develop coping mechanisms to deal with the stresses of being unemployed and his unfair dismissal case. Notwithstanding the focus of the counselling, the psychologist has administered the Personality Assessment Instrument upon the applicant. The assessment is based upon the applicant’s insight into his own situation and his self-report. The psychologist concludes: “While it is not possible to accurately predict the risk of someone being a possible child sex offender, or someone who views child pornography, this personality assessment finds no reason to conclude that [the applicant] should be classified as such.”

110. The applicant has not acknowledged to the Tribunal or shown any real insight into the effect of his use of pornography upon his life or upon the models who pose for the visual and sexual enjoyment of the applicant. The applicant appears to have recognised that he has had a problem with pornography access in the past and the reference from his friend contained in the material tendered by the respondent identifies that he loaded a “porn filter” on his computer and arranged for the friend to be his “accountability partner”, presumably to encourage less access to pornography using the computer: Exhibit R1 page 84. It emerged from the oral evidence in the Tribunal that the friend also has past issues with excessive pornography access. This information was not apparently provided to Mr Powell.

111. It must be remembered that applicant’s expert in the unfair dismissal proceedings agreed with the other expert that five web pages visited by the applicant which included the term “Lolitas” in their title can be considered “parlance for material depicting underage girls”: Exhibit R1 page 45. An unhealthy interest in underage girls is not appropriate and in accordance with community standards as to proper conduct for a person engaged in the lives of underage pupils.

112. Significantly the web pages accessed by the applicant with titles that include phrases such as “schoolgirls”, “young girls”, “young teens”, “young virgins”, “models 16” and “innocent” according to the applicant’s expert, are not evidence of the existence of illegal material, but such pages with those titles “may contain sexual images of children under the age of 18.”: ibid. It is highly probable that the pages visited by the applicant with the titles recorded, contained images of underage girls and that the applicant was aware of that and it accordingly attracted his interest.

113. There is no suggestion that the applicant has changed his lifestyle or his access to pornography.

114. The applicant not only seeks to minimise and normalise his conduct but accuses his employer of malicious behaviour, and attacks the findings of the computer expert even where he agrees with the opinions of the applicant’s own expert. It is difficult to conclude on the evidence provided by the applicant that the applicant has made any relevant significant changes to his lifestyle. The applicant has not undertaken any self-development to address the issues which led to his loss of employment. The respondent submits that this is significant because the applicant would come into unsupervised contact with children in the course of his employment as a teacher on a daily basis.

115. The impact on children is not limited to the risk of sexual abuse if the applicant enacts any of the fantasies he may have concerning the females who appear to be and may in fact be under the age of 18.

116. The creation of a market for images of the type that the applicant has accessed encourages “hands-on” child abuse or exploitation and the creation of images which normalise the sexualisation of children under the age of 18 for the sexual gratification of people who access those images.

117. There has been no evidence of inappropriate conduct, including transgression of boundaries within the applicant’s professional role of a teacher prior to his dismissal, other than his access to inappropriate material utilising his computers provided by his employer.

Any information given by the applicant in, or in relation to, the application

118. The applicant has provided information including a character reference and statutory declaration from long-standing friends. The applicant stated that he has four brothers and a sister with whom he has grown up and continues to have “pleasant relationships”: Statutory Declaration declared on 10 June 2015 at [10], [11] Exhibit R1 pages 89-90; part of Exhibit A2.

119. The applicant says that he has raised three daughters and says that he has no interest in looking at images of teens or young children: Statutory Declaration declared on 10 June 2015 at [9] part of Exhibit A 2. This does not accord with the recorded webpages he has visited.

120. The applicant relies upon the extracted parts of his expert’s report commissioned for the unfair dismissal case.

121. The Children’s Guardian has not submitted that the applicant has failed to provide relevant information.

Any other matters that the Children’s Guardian considers necessary

122. The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary.

123. The Children’s Guardian submits that the applicant should not be granted a working with children check clearance.

124. The respondent submits that a real and appreciable risk to the safety of children is present.

Consideration

125. The behaviour and conduct which triggered this assessment is a serious matter. The conclusion by the Principal that the applicant poses an unacceptable sexual and psychological risk to students in his care and under his direction as a teacher, appears well founded.

126. The harm perpetrated by the behaviour of the consumers of offensive visual material such as that viewed by the applicant was beyond reasonable community norms as is reflected in legislation outlawing the possession of child abuse material. The applicant did not possess that material but accessed it on a regular basis. That does not mean the behaviour is necessarily excusable.

127. The behaviour is part of a pattern of ongoing events, and is recent. If repeated, the concerning behaviour would perpetrate harm as identified. There has not been provided evidence of significant and sustained positive changes since the behaviour occurred. Recurrence of the concerning behaviour is over a significant period is established by the evidence, and genuine and sustained effort to remedy the conduct and past behaviour is not evident on the evidence provided to the Tribunal.

128. The behaviour, if repeated, would be more likely than not to do significant harm and the consequences are likely to be serious to under age models or persons who appear underage. The paramount principle under the Act includes protection of children from abuse and suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged.

129. The applicant has identified only very limited factors which would operate in his favour.

130. The applicant has not acknowledged or shown any insight into the effect his conduct may have on young people who may be victims of exploitation. The applicant has shown no apparent remorse. Remorse on its own, in any event, is insufficient to ameliorate risk.

131. The applicant is unrepentant about his access to voluminous sites of pornography which could be classified as child abuse material although he prefers to identify his behaviour as normal and simply due to his lack of “a wife which unfortunately at present I don’t possess.”

132. The Tribunal it is unable to properly assess at this time whether the applicant has the capacity to change his behaviours even if he had the desire to change.

133. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Conclusion

134. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.

135. Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

136. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children posed by the applicant.

137. The evidence received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. 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.

138. If the Tribunal is in error in concluding that there is a real and appreciable risk of harm to children, it is concluded on the balance of probabilities that the circumstances surrounding the course of conduct by the applicant means that there is a risk to children or that the existence of a risk has not been disproven.

139. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not maintain or receive a Working with Children check clearance. The decision of the Children’s Guardian should therefore be affirmed.

Orders

140. The order of the Tribunal is that:

1. The decision of the Children’s Guardian dated 16 October 2015 to cancel the applicant’s Working with Children Check clearance under section 23 Child Protection (Working with Children) Act 2012 is affirmed.

2. The application for review of the decision of the Children's Guardian filed 22 October 2015 is otherwise refused and dismissed.

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: 08 April 2016