CFJ v Office of the Children's Guardian

[2016] NSWSC 1625

Supreme Court

New South Wales

Medium Neutral Citation:	CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
Hearing dates:	2 November 2016 and 3 November 2016
Date of orders:	18 November 2016
Decision date:	18 November 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	(1)   Leave to commence the proceedings out of time is granted. (2)   Leave to appeal is granted, but the appeal is dismissed. The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) in those circumstances is an order that CFJ pay the Guardian’s costs, as agreed or assessed. Unless the parties approach within 14 days, that will be the Court’s order.
Catchwords:	ADMINISTRATIVE LAW – leave to appeal against NSW Civil and Administrative Tribunal decision re working with children check clearance – s 27 of the Child Protection (Working with Children) Act 2012 – leave to commence proceedings out of time – leave granted – whether Tribunal failed to apply the Briginshaw standard – whether plaintiff was denied procedural fairness because possible offending under the Criminal Code Act 1995 (Cth) was not raised for consideration - whether Tribunal misconstrued the applicable statutory provisions – whether plaintiff was denied procedural fairness by receipt of opinions expressed by an unidentified doctor in School’s report to Ombudsman – whether Tribunal failed to give adequate reasons – whether Tribunal’s decision was legally unreasonable – appeal dismissed
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (repealed) Commission for Children and Young People Act 1998 (NSW) (repealed) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth) Ombudsman Act 1974 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Ainger v Coffs Harbour City Council [2005] NSWCA 424 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 BKV v Children’s Guardian [2015] NSWSC 1602 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 CFJ v Children’s Guardian [2016] NSWCATAD 62 Children’s Guardian v BQJ [2016] NSWSC 869 Children's Guardian v CFW [2016] NSWSC 1406 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Italiano v Carbone & Ors [2005] NSWCA 177 Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609 Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 M v M (1988) 166 CLR 69; [1988] HCA 68 MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 PFC v R [2011] NSWCCA 275 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Partington v R (2009) 197 A Crim R 380; [2009] NSWCCA 232 R v Miao [2016] NSWDC 181 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197
Category:	Principal judgment
Parties:	CFJ (Plaintiff) NSW Office of the Children’s Guardian (Defendant)
Representation:	Counsel: Mr D Mahendra (Plaintiff) Ms T Wong (Defendant)   Solicitors: Lawmark Solicitors and Notaries (Plaintiff) Crown Solicitor’s Office (Defendant)
File Number(s):	2016/148232
Publication restriction:	Orders made pursuant to ss 7 and 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

Judgment

1. CFJ seeks leave to appeal a decision of the New South Wales Civil and Administrative Tribunal, given under the Child Protection (Working with Children) Act 2012 (NSW), affirming a decision of the NSW Office of the Children’s Guardian, cancelling his working with children check clearance. The cancellation followed CFJ’s dismissal in 2014 from his employment as a teacher, after the School’s investigation into his use of its computers to access pornography. The result of the Guardian’s decision was that CFJ can no longer pursue his teaching profession, or otherwise work with children, not being the holder of the statutorily required working with children check clearance.

2. CFJ has a right to appeal the Tribunal’s decision to this Court on a question of law under s 17(1)(a) of Schedule 3 to the Civil and Administrative Tribunal Act2013 (NSW). The grounds of appeal which he finally pressed were:

“1 The tribunal below misconstrued s.227 of the Children and Young Persons (Care and Protection) Act and/or s.91 FB of the Crimes Act1900 and thereby erroneously found that the plaintiff had viewed child abuse material. This error consequently infected the entirety of the tribunal's consideration of the matters set out in ss. 15 and 30 of the Child Protection (Working with Children) Act 2012.

2 The tribunal below misconstrued ss.15(4) and 30(1) of the Child Protection (Working with Children) Act 2012 by finding, in effect, that the plaintiff's legal conduct constituted an "offence" and/or "serious matter" within the meaning of those sections.

3 The tribunal's decision to affirm the decision of the Children's Guardian dated 16 October 2015 cancelling the plaintiff's Working with Children Check clearance under s.23 of the Child Protection (Working with Children) Act 2012 is legally unreasonable based on the evidence before it.

4   The tribunal erred at law by failing to provide adequate reasons at [84] of its decision as to why it:

a.   preferred the defendant's submission that using the search term "girls" supported a finding that the plaintiff was looking for images other than women; and

b.   rejected the plaintiff's evidence that he used the search term "girls" on the basis that it was a synonym for "women".

5   The tribunal erred by relying upon, or in the alternative, denied procedural fairness and/or natural justice to the plaintiff by relying on, an unidentified doctor (who did not give evidence in the proceedings below) to find at [95] that, of the images assessed by that doctor (there being no evidence as to what images were assessed):

a.   half of the images were assessed to be under 16 years of age;

b.   and 89 percent of the females looked under the age of 18 years.

6.   …

7   The tribunal erred at law by making the following findings as such findings were not reasonably open on the evidence:

a.   that the plaintiff looked 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;

b.   that the plaintiff achieves sexual gratification in viewing images of teenage females or adult females who appear teen-like and images of females depicted as schoolgirls;

c.   that the plaintiff admitted that he gained sexual satisfaction from viewing the visual representations of naked women and young persons;

d.   that the plaintiff has unhealthy interest in underage girls;

e.   that the plaintiff's behaviour, if repeated, would be more likely than not to do significant harm and the consequences are likely to be serious to underage models or persons who appear underage; and

f.   the plaintiff poses an unacceptable sexual and psychological risk to students in his case and under his direction as a teacher.

8    The proceedings below miscarried or the Tribunal misunderstood its function, denied procedural fairness to the Plaintiff, or misapplied Briginshaw v Briginshaw as it failed to appreciate that the allegation made against the Plaintiff was an allegation that he had engaged in criminal conduct pursuant to section 474.19 of Schedule 5 of the Criminal Code Act 1995 (Cth).”

Out of time application and leave to appeal

3. These proceedings were commenced out of time on 13 May 2016. The Guardian did not oppose CFJ’s application for leave to commence the proceedings out of time.

4. That application is accordingly granted and leave to appeal is given.

The proceedings before the Tribunal

5. There was no issue between the parties as to the circumstances which led to CFJ’s dismissal from his employment at the School, the cancellation of his clearance and the commencement of his proceedings before the Tribunal.

6. It was in December 2014 that CFJ was dismissed for allegedly storing pornographic images of young girls, in particular teenage school girls, on his work laptops, having earlier admitted use of the computers to access pornography. He pursued unfair dismissal proceedings in which both parties served reports from forensic expert. Dr Watts, who had examined the computers and Mr Klein, who disagreed with various conclusions he had reached. The proceedings were later resolved “on a commercial basis”. The School also provided the Ombudsman with a report into CFJ under s 25C “Reporting of reportable allegations or convictions to the Ombudsman” of the Ombudsman Act1974 (NSW).

7. In that report the School advised that it had formed the view that CFJ may have engaged in reportable conduct under s 25A. It explained that CFJ had denied accessing child pornography and so it had commissioned a further external assessment of the URLs Dr Watt had identified that CFJ had accessed on its computers, from a doctor with qualifications in gynaecology and obstetrics. That doctor had used “Tanner staging”, said to be a medical tool describing normal development through puberty, to advise the School as to the age of the subjects of the pornographic material there depicted. A spreadsheet identifying the sites visited and the notes made as to what was there seen was attached to the report, but there were no copies of the images examined there provided.

8. The exercise involved 118 URLs taken from a randomly selected 26 days, across the period of the computer logs, with an average browsing time of 2.9 minutes, being examined. The conclusions reached included that 62 URLs contained images that the doctor was very confident were of girls of average age of 16 or less, 105 contained images of females who looked to be under 18, with many under 16, but who could not be considered under Tanner staging, because not both breast and pubis areas were visible. 73 URLs had prominent banner images containing the word “teen”. Nine URLs contained images of girls so young that they were considered to be likely to be child abuse images.

9. The report also noted that five images stored in one of the computers’ hard drives had been examined by Dr Watts, who considered them to be images of females aged under 18 years. Those images were also not annexed to the report. It was observed in the report that Mr Klein had not examined the computers, despite efforts there described to give him access to them, but he was given a copy of the hard drives.

10. In the report it was also explained why it was that the School had concluded that CFJ had not only engaged in professional misconduct, but also reportable conduct, when he accessed pornographic material using its laptops, given the advice it had received from the experts, that the material accessed included child pornography or child abuse material.

11. On 30 January 2015 CFJ applied for a clearance under the Working with Children Act. It was granted on 9 February 2015. In March the Ombudsman disclosed the School’s report to the Guardian.

12. On 15 April the Guardian issued an interim bar on CJF’s clearance, while a risk assessment under s 17 of the Working with Children Act was undertaken. Despite CFJ’s representations to the Guardian as to his conduct; the circumstances in which his unfair dismissal case was settled; and his view that the School’s report to the Ombudsman had been unjustified, he not having engaged in any reportable conduct, on 16 October, the Guardian cancelled his clearance.

13. On 22 October CFJ made a review application to the Tribunal under s 27 of the Working with Children Act. Section 27 required CFJ “to fully disclose” to the Tribunal any matters relevant to his application.

14. Before the hearing, the materials on which the parties relied were filed and served. As well as written submissions, CFJ relied on a written statement and various documents, including the report of Mr Klein. A report of Dr Powell, a psychologist who had treated CFJ before he was dismissed by the School, was also relied on.

15. The materials relied on by the Guardian included Dr Watt’s reports, the second prepared in answer to that of Mr Klein, as well as the report provided by the School to the Ombudsman.

16. CFJ was represented at the hearing by his father and on occasions spoke for himself, but he was not legally represented in those proceedings.

17. CFJ contended that all that he had done was to engage in perfectly lawful activity and that there was no evidence that he had actually viewed images of persons under the age of 18 years. In cross-examination he denied viewing, or deliberately viewing, images of females who appeared to be under 18 years. His evidence was that he had no interest in viewing pictures of teenagers or children; he had never sought to view such pictures; and had never searched for “teens” or “schoolgirls” on the internet.

18. CFJ had undertaken his own analysis of the websites the subject of the investigation the School had commissioned, the results of which were recorded in its report to the Ombudsman. He took issue with conclusions which the School had reached, which he addressed in his written submissions. In his case, CFJ did not, however, produce any images from websites which he had accessed, despite saying in his evidence that he had copies of such images to produce to the Tribunal.

19. There was no suggestion that anyone other than CFJ had used the computers which Dr Watt had examined. He was cross-examined on his understanding of the word “pornography” and his website searches using the term “girl” in the search, as well as his sexual interest in the images he viewed. CFJ denied that such searches were likely, in the context of searching for pornography websites, to bring up images of younger females. He also denied that he had intentionally looked at those aged under 18 on the internet. He explained that “a lot of adult sites have a category they call ‘Teens’”, who he said were 18 or 19 year olds, but that he had never clicked on, or been interested in those images. He agreed, however, that he had looked at a particular website with the name “alex” in the title, which Dr Watt had identified as being one that he had visited.

20. CFJ was then shown an image of the home page of the “alex” website, but he denied having visited it in August 2014, on an occasion identified in the report. While he did agree that the site depicted pictures of females, he denied that many of them looked like teenagers. His explanation was that he had never searched for that site, but had been redirected there. One page, he said, had “teen” in the banner, by which they meant 18 and 19 year olds, but he said that he had never clicked on that site.

21. Later he explained that by clicking on particular images, he hoped to get to more images of a particular model, with the result that he was taken to the “alex” homepage. He was then shown an image of that page, which he identified, but he denied having looked at images on the website, even though Mr Watt’s analysis indicated that he had spent 11.2 minutes browsing that URL.

22. When the image of the homepage was tendered, the Senior Member queried whether it was needed. It was submitted for the Guardian to be relevant to CFJ’s evidence, given, it was submitted, that teen-like images were there depicted. The Senior Member said that he did not consider the tender necessary, to determine what sites had been accessed, given the reports. The Senior Member asked CFJ, however, whether he accepted that the images on the homepage depicted people aged under 18 years, which CFJ denied.

23. The Senior Member then warned CFJ that he had a right to remain silent, if he thought that anything which he said might incriminate him. The Senior Member also explained that the Tribunal was assessing his risk to children, defined to be anybody under the age of 18. The Senior Member also expressed the view that some of the pictures on the homepage were of people who may be under that age. After further discussion, the tender was not pressed and the images were marked for identification. Later their receipt was rejected, with the result that the images about which CFJ had given evidence, which the Tribunal members saw and the Senior Member expressed an opinion about, are not in evidence.

24. On 8 April 2016 the Tribunal affirmed the Guardian’s decision (see CFJ v Children’s Guardian [2016] NSWCATAD 62).

The Tribunal’s statutory task

25. These were administrative proceedings brought under the Administrative Decisions Review Act1997 (NSW). Section 63 obliged the Tribunal to review the Guardian’s decision in order to decide what the “correct and preferable” decision was in relation to the cancellation of CFJ’s clearance, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. For that purpose it had the power to “exercise all of the functions that are conferred or imposed by any relevant legislation” on the Guardian (s 63(2)).

26. Section 58(1) required the Guardian to lodge with the Tribunal:

“(a)   a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and

(a1)   a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and

(b)   a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.”

27. That obligation explained the Tribunal’s tender of the School’s report. Section 27(4) of the Working with Children Act also obliged CFJ “to fully disclose to the Tribunal any matters relevant to the application.” That explains why CFJ did not object to the tender of the report.

28. The conduct of the proceedings before the Tribunal was governed by the Civil and Administrative Tribunal Act, which by s 36 required the Tribunal to give effect to the “guiding principle”, namely to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. Section 38(1) provides that the Tribunal is “not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”.

29. The Tribunal was also obliged to “act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (s 38(4)). Section 38(6) required the Tribunal, amongst other things, “to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings”. Section 38(5) required it “to take such measures as are reasonably practicable:

“(a)   to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b)   if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c)   to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.”

30. The Guardian’s decision was made under the Working with Children Act. It was the Ombudsman’s notification which triggered an “assessment requirement” under s 14 (see schedule 1 to that Act). Section 15(1) required the Guardian to determine whether CFJ “poses a risk to the safety of children”. Section 15(4) required the Guardian to consider:

“…

(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.”

31. Section 23(1) required the Guardian to cancel CFJ’s clearance, if satisfied that he posed “a risk to the safety of children”. That term is not defined in the Act. The assessment of whether he posed such a risk had to be approached in the way discussed by Harrison J in Office of theChildren's Guardian v CFW [2016] NSWSC 1406 at [14] - [17].

32. In undertaking its functions, the Guardian had to bear in mind objects of the Working with Children Act. They are specified in s 3 to be:

“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.”

33. Section 4 of the Working with Children Act was also relevant, it providing:

“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.”

34. When the Tribunal considered CFJ’s application for administrative review of the Guardian’s decision it, too, had to bear ss 3 and 4 in mind. It also had to take into account the matters specified in s 30(1) of the Working with Children Act, which provided:

“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.”

The Tribunal’s decision

35. After outlining the background to the application which CFJ had made; the question which fell to it to determine under s 63 of the Civil and Administrative Tribunal Act; its powers; and how it had to approach its task under the applicable statutory regimes and binding Caselaw; the Tribunal turned to resolve what it identified to be the primary issue before it, the correct and preferable decision as to the grant of a clearance to CFJ at the time of its determination, having regard to the evidence before it.

36. At [52] of its decision the Tribunal observed that CFJ had no obligation to establish that the Guardian’s decision was wrong and that there was no presumption that he did pose a risk to children, as would have been the case, if he were a disqualified person seeking an enabling order (see s 28(7) Working with Children Act). At [56] the Tribunal indicated that in undertaking its task, it had regard to the matters specified both by s 15(4) and s 30(1).

37. The Tribunal then turned to consider the evidence in light of those requirements, noting at [61] that it was not bound by the rules of evidence, but that s 63 of the Administrative Decisions Review Act empowered it to consider “the surrounding circumstances and any evidence or factual circumstances in relation to” CFJ's conduct.

38. The Tribunal then turned to consider the seriousness of CFJ’s conduct, finding that the matters which caused the cancellation of his clearance to be “at a high level of seriousness” (at [63]). The explanation for that conclusion began with a consideration of the School’s report to the Ombudsman, where the view was expressed that CFJ might have engaged in “‘reportable conduct” under s 25A of the Ombudsman Act. “Child” is there defined to mean “a person under the age of 18 years”. “Reportable conduct” is defined to mean:

“(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, …”

39. The Tribunal then noted the definition of “child abuse material” in s 91FB of the Crimes Act 1900 (NSW), offending concerned with these under 16 years. At [69] the Tribunal observed:

“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.”

40. The Tribunal then observed that CFJ had not been charged with any such offence and that it was not alleged that he had saved any child abuse material to his computer. At [70], it found however, that “… [t]he 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”.

41. It then turned to consider “… 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” (at [71]). It began its consideration with the formal allegation notified to CFJ by the School, the letter of 7 July 2015 providing that:

“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’.”

42. The advice given by the school to CFJ was noted to be:

“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.”

43. The Tribunal also noted CFJ’s evidence that he never looked for the word “teens” or “schoolgirls” on the internet, noting however that this was not what the School had alleged. It then turned to the expert reports in evidence, they not having been required for cross-examination. The matters which the Tribunal noted included:

“76    ... 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.”

44. The Tribunal then noted that the School’s investigation into CFJ’s computer use was the result of the frequency of their infection with virus or malware. That investigation had revealed that “a large number of pornographic sites have been accessed from the applicant’s allocated computers” and “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” (at [79]).

45. The Tribunal also noted CFJ’s written response to the School, in which he admitted using the School’s computers to access pornographic material, admissions which it observed at [82] he had sought to resile from at the hearing, contending that “the images were, in fact, not ‘pornographic’ but simply naked images of women”. Given CFJ’s evidence that he gained sexual satisfaction from viewing the images, the Tribunal considered that the material was pornographic (at [83]). After referring to the parties’ submissions, it concluded at [87] that there had been:

“... 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.”

46. At [89] – [90] the Tribunal also concluded on the balance of probabilities that CFJ had “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” and that he “achieves sexual gratification in viewing images of teenage females or adult females who appear teen-like and images of females depicted as schoolgirls”.

47. When considering “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”, the Tribunal noted the issue lying between the parties as to the evidence concerning the age of the females in the images CFJ had accessed. It observed at [95] – [96]:

“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 per cent 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.”

48. The Tribunal considered that CFJ “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” (at [99]). When considering the seriousness of the conduct found, it noted at [104] CFJ’s denial of 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.

49. The Tribunal also noted that its jurisdiction was “protective, not punitive”, but considered that its assessment of risk should “err on the side of caution whilst balancing all of the risks which may be posed to children”, noting that the paramount principle under the Act is the protection of children, particularly from child abuse, but that it is not the only factor which it had to consider (at [133]).

50. After again observing that neither party bore an onus of proof, the Tribunal concluded (at [136] – [139]) that:

“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.”

Ground 8 - did the Tribunal fail to apply the Briginshaw standard and was CFJ denied procedural fairness because possible offending under the Criminal Code Act was not raised for the Tribunal to consider?

51. It is convenient to begin with this ground of appeal, leave to amend the summons having been given without objection at the commencement of the hearing, following the Guardian’s confirmation that it would submit that the evidence before the Tribunal was capable of establishing that CFJ had committed offences under the Criminal Code Act 1995 (Cth). That had not been submitted to the Tribunal, in circumstances where there was evidence that after investigation by both State and Federal police, no charges had been laid against him.

52. Even without that submission being advanced to the Tribunal, however, it identified at [63] of its reasons that the matters which had led to the cancellation of CFJ’s clearance were “at a high level of seriousness”. That was undoubtedly correct, given that he had been dismissed from his employment as a teacher at a co-educational school and lost his clearance, after he had admitted that he had used school computers to access pornography on the internet, which, as the result of the School’s investigations, had led it to the conclusion that those there depicted included females aged under 18 years. The Guardian’s decision then precluded him from pursuing his profession as a teacher, or otherwise working with children.

51. At [70] the Tribunal found that CFJ had looked at websites which contained images of those who appeared to be under the age of 18 years, who it observed could not legally consent to such depiction (at [96]). These were very serious conclusions, even absent a consideration of whether that conduct was capable of constituting an offence under the Criminal Code Act.

52. It would unarguably have been preferable for submissions about the possibility of such offending to have been raised before the Tribunal. That the Tribunal fell into error in its approach to the assessment of the evidence as to the conduct which might have involved such offending and that CFJ was denied procedural fairness and natural justice as the result of the Guardian’s failure to raise that possibility before the Tribunal, does not, however, inevitably follow.

53. In oral submissions, it was explained that while the Tribunal had referred to the Briginshaw test in its reasons, it had obviously misapplied that test, not understanding that what it was dealing with was criminal conduct; that the Briginshaw test required it to be “comfortably satisfied” that conduct which would constitute criminal conduct had been engaged in; that the test went to the quality of the evidence; that in order for the Tribunal to have reached the conclusions which it did, the quality of the evidence would have had to have been better, before it could have had that comfortable satisfaction; that the Tribunal had not appreciated the grave consequences of its findings, because it did not realise that it involved criminal offending; and that the Tribunal had to understand that the conduct alleged could have constituted a criminal offence, in order to correctly apply the Briginshaw test (see BriginshawvBriginshaw (1938) 60 CLR 336; [1938] HCA 34).

54. It was submitted that the result of the Guardian’s failure to raise the question of criminal conduct was that there had been a miscarriage, because the Tribunal had misunderstood its function and because it had, in any event, failed to apply the Briginshaw test, given the poor quality of the evidence.

55. These submissions may not be accepted.

56. The Tribunal’s reasons, where it explained its statutory task; the issues which fell to it to resolve; and how it would approach their resolution, established that it correctly understood its function. That was to determine whether CFJ posed a risk to the safety of children and what the correct and preferable decision was, as to the cancellation of his clearance.

57. At [19] - [24] of its reasons, the Tribunal discussed the standard of proof which applied to what it had to determine, in light of the practical forensic onus which fell on CFJ, given the statutory obligation imposed upon him by s 27(4) of the Working with Children Act, to fully disclose to the Tribunal any matters relevant to his application.

58. It there referred to Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 at [40] and Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [15] - [17], amongst other authorities. In Kostas, in relation to a predecessor Tribunal, on which similar procedural obligations were imposed under the Consumer, Trader and Tenancy Tribunal Act2001 (NSW), it was observed at [15] – [17]:

“15    The Tribunal may, subject to the CTTT Act, determine its own procedure. It is not bound by the rules of evidence and may inquire into, and inform itself on, any matter in such manner as it thinks fit, subject to the rules of procedural fairness. That freedom is enjoyed by many administrative tribunals. The term "rules of evidence" does not lay out with precision its metes and bounds. Nor does it exclude the discretionary application of such rules. But the authority of the Tribunal to "inform itself on any matter in such manner as it thinks fit" indicates that it is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law.

16    There are qualifications upon the Tribunal's procedural freedom. One, which is explicit, is the requirement to observe procedural fairness. The Tribunal's modus operandi must also serve its function, which, in this case, was to hear and determine a building claim. That function implies a rational process of decision-making according to law. A decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process.

17    The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott that those rules "represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth". It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to "creep back through a domestic procedural rule"” [footnotes omitted].

61. The Tribunal identified at [38] that what it had to determine under the Working with Children Act was whether CFJ posed “a real and appreciable risk”. At [39], by reference to BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 and M v M (1988) 166 CLR 69; [1988] HCA 68, it turned to the standard of proof which it would apply. In BKE, Beech-Jones J had observed at [29] that:

“29    In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).”

62. At [39] the Tribunal said in relation to the assessment of risk that:

“… 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.”

63. The Tribunal was there referring to the paramount considerations specified in s 4 of the Working with Children Act. The Tribunal went on at [45] - [47] to refer to the second reading speech, in outlining its approach to the determination of whether “real and appreciable risk” existed.

64. These observations demonstrate not only the Tribunal’s appreciation of the seriousness of what was contended against CFJ, but also its view that in resolving what lay in issue, it should approach the evidence in the way discussed in Briginshaw. That is not a test which may only be applied by an administrative decision maker when allegations of potentially criminal conduct is advanced, as the decision in O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230 on which CFJ relied, itself illustrates.

65. It should be noted that in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988, Button J took the view for reasons discussed at [71] - [79], that s 38 of the Civil and Administrative Tribunal Act providing as it does that the rules of evidence do not apply to proceedings before the Tribunal and there being no onus of proof, it followed that there was no standard of proof and that the Briginshaw principle did not apply. His Honour there referred to Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305;, where the Victorian Civil and Administrative Tribunal, which under s 97 of the Victorian Civil and Administrative Tribunal Act 1988 has similar procedural requirements to those imposed by s 38 of the Civil and Administrative Tribunal Act arose for consideration.

66. In Karakatsanis it was held at [35] - [36] that while the Victorian Tribunal was not bound by the principles in Briginshaw, it was required to act fairly, on the basis of relevant evidence, and thus it was entirely proper for it to approach its assessment of the evidence on the basis of “comfortable satisfaction” as to the facts in issue, as discussed in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35]. There it was said, in relation to how another New South Wales Tribunal operating informally and not as a court of law bound by the rules of evidence, should approach the Briginshaw principles, namely it should seek to have:

“… a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body”

67. What s 38(4) of the Civil and Administrative Tribunal Act required was that the Tribunal act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. In my view, the Tribunal did not fail to meet those obligations, in approaching its consideration of whether the serious matters alleged against CFJ had occurred, in approaching its task as it did.

68. Given the way in which the parties ran their cases before the Tribunal, on the common basis that CFJ had not engaged in unlawful conduct, it was not called on to consider the possibility that CFJ had committed offences under the Criminal Code Act. Even if it had been criminal conduct which was alleged against CFJ, the Tribunal would not necessarily have been required to determine whether he had committed any offence (see Children’s Guardian v BQJ [2016] NSWSC 869 at [61] - [64] and BKV v Children’s Guardian [2015] NSWSC 1602 at [35]).

69. Further, even if such offending had been raised, the Tribunal would still have been required to determine whether the evidence established that CFJ “poses a risk to the safety of children”, by resolution of the matters over whether the parties joined issue, namely; as to whether he had accessed websites where he had viewed images of naked females who appeared to be under the age of 18 years (see s 18(2) Working with Children Act).

70. As Harrison J explained at [14] in Office of theChildren's Guardian v CFW [2016] NSWSC 1406 in resolving such issues, what the Tribunal first had to consider was "whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether it had "no hesitation in rejecting the allegation as groundless".

71. In this case, a positive finding that CFJ had accessed web sites where he had viewed images of naked females who appeared to be under the age of 18 years, is likely to have had a “decisive impact” on the Tribunal’s decision, whether or not his conduct was also capable of constituting offences under the Criminal Code Act (see CFW at [14]).

72. Unless the Tribunal determined that the allegations that CFJ had viewed such images were groundless, even if no positive finding that he had accessed such images could have been made on the evidence, questions of whether he posed a risk to the safety of children would still have had to be determined by the Tribunal in the way discussed in CFW at [16] and M v M at 77).

73. It follows that even if the submission that CFJ had committed offences under the Criminal Code Act been advanced before it, in determining whether CFJ posed a risk to children’s safety the Tribunal could not, without error, have approached its functions in any different way to that in which it indicated it would approach them in any event, given the seriousness of the matters which arose for it to consider. That is, by applying the Briginshaw standard.

74. Had the Tribunal been put on notice of this now alleged Commonwealth offending, it certainly could not have applied the higher criminal standard to its determination of any of the questions which fell to it to resolve. Those questions would have remained whether the evidence established that CFJ had accessed websites which depicted those aged under 18 years; whether he had viewed such images; and whether, as a result of the conclusions which the Tribunal reached, it could be concluded that he posed a risk to the safety of children.

75. The Tribunal intended, as it explained at [39], to apply the Briginshaw principle to the resolution of what it had to decide, appreciating as it did the seriousness of what had been alleged against CFJ. For reasons which will be explained further when I deal with the other grounds over which the parties have joined issue, there is no basis on which it could sensibly be concluded that the Tribunal did not apply that standard, as it said it would. The submission that the quality of the evidence was so poor, that the Briginshaw standard could not have been applied by the Tribunal, cannot be accepted.

76. Nor is it open to conclude that the Tribunal could or should have adopted some even more stringent approach to its consideration of the evidence, had it been contended before the Tribunal that CFJ’s conduct was even more serious, involving criminal offending under the Criminal Code Act, as was contended on this appeal. That there was any procedural unfairness to CFJ as the result of the failure to raise that question before the Tribunal is also not apparent.

77. Potential Commonwealth offending was not raised before the Tribunal, other than by way of the evidence that Commonwealth police had considered the matter, but had not charged CFJ with any offence. The case advanced by the Guardian on this appeal, that CFJ had arguably committed a Criminal Code Act offence, could certainly not have assisted CFJ’s case, if it had been advanced before the Tribunal.

78. To the contrary, that would have been positively to his disadvantage, involving as that contention does another serious matter which the Tribunal would have had to consider, in reaching its conclusions as to whether CFJ posed a risk to the safety of children. That is because ss 15(4)(a) and 30 of the Working with Children Act required consideration to be given to “the seriousness of any matters that caused the assessment in relation to the person”.

79. Even without the possibility of Commonwealth offences being raised, however, the seriousness of the conduct the Guardian contended that CFJ had engaged in was, correctly, recognised by the Tribunal.

80. After CFJ identified the “alex” home page and denied that the images he was shown depicted females who appeared to be under the age of 18 years, on their tender, the Senior Member gave CFJ a self-incrimination warning. It was not suggested on this appeal that there was any error in the giving of that warning, which both procedural fairness and justice clearly required CFJ be given, even though the rules of evidence did not apply to the proceedings.

81. The final result of the Tribunal’s approach was that neither the images about which CFJ had been cross-examined, nor those which he volunteered that he had available to produce to the Tribunal, went into evidence.

82. The Tribunal was required to determine the correct and preferable decision as to whether CFJ posed risks to the safety of those aged under 18 years, bearing in mind the paramount consideration: the safety, welfare and well-being of children and, in particular, protecting them from child abuse. A finding that he posed such a risk did not depend on a conclusion that he had committed any offences.

83. The Tribunal had to consider what CFJ contended, namely, that all that he had done was to lawfully view naked pictures of adult women, as well as what the Guardian contended, that he had searched for and accessed websites where he had viewed images of naked females apparently aged under 18 years there depicted, in light all of the evidence and the way in which the parties had advanced their cases.

84. There was no error in the Tribunal’s approach to the resolution of these issues, or in its application of the Briginshaw test. That CFJ did not have to address a further consideration which could have weighed against him being granted the clearance which he sought did not, in the circumstances, involve any injustice.

85. In the result, this ground of appeal must fail.

Grounds 1 and 2 – did the Tribunal misconstrue the applicable statutory provisions?

86. CFJ admitted to the School having used its computers to access pornography, but before the Tribunal denied that the images he had viewed were pornographic. That stance was not maintained on this appeal. His case before the Tribunal was that what he had done was perfectly legal and that he posed no relevant risk to the safety of children. That position was maintained on appeal. It was the type of images for which CFJ had searched and the apparent age of those depicted on images he had viewed and whether what he had done posed any risk to the safety of children, which was in issue below.

87. To make out his case on this appeal, CFJ contended that the Tribunal’s reasoning was fundamentally flawed, because “it had conflated the definition of children under s 5(1) of the Working with Children Act with the definition of “child abuse” pursuant to s 227 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and “child abuse material” in s 91FA of the Crimes Act. This was said to be revealed at [126] of the reasons, where it observed:

“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.”

88. These submissions may not be accepted. The Tribunal did not err in its approach to the consideration of the questions raised by CFJ’s application, or its construction of the statutory schemes to which it referred.

89. It may be accepted that the Working with Children Act does not concern itself with conduct which is “perfectly legal”, other than when such conduct is capable of providing a basis for the conclusion that a person who engages in it, poses a risk to the safety of children, defined in s 5 to mean “persons under the age of 18 years”.

90. In considering whether any particular conduct has the capacity to provide a basis for a conclusion that a person does pose a risk to the safety of those under the age of 18 years, the Tribunal has to bear in mind the paramount consideration specified in s 4 of that Act, namely the safety, welfare and well-being of such children and, in particular, protecting them from “child abuse”, a term not defined in the Working with Children Act.

88. On this appeal it was not contended that protection of those aged under 18 from “child abuse”, would not comprehend protection from either their involvement in, or exposure to, pornography. Such allegations unarguably raise serious matters requiring the Tribunal’s careful consideration on an application for a clearance under the Working with Children Act.

89. Such conduct may give rise to offences such as those created by s 227 Child and young person abuse of the Children and Young Persons (Care and Protection) Act 1998 (NSW); in the Crimes Act by, for example s 91G “Children not to be used for production of child abuse material” and s 91H “Production, dissemination or possession of child abuse material”; and by Part 10.6 of the Criminal Code Act in relation to the use, possession, control, production or supply of “child pornography” or “child abuse material”, defined in s 437.1 by reference to persons who are or appear to be under 18 years of age.

90. Section 227 of the Children and Young Persons (Care and Protection) Act provides:

“227   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.”

94. While “child” is defined in s 3 of the Children and Young Persons (Care and Protection) Act to mean, except in Chapter 13, (which deals with children’s employment) “a person who is under the age of 16 years”, a “young person” is there defined to mean “a person who is aged 16 years or above but who is under the age of 18 years”. In s 91FA of the Crimes Act “child” is also defined to mean “a person who is under the age of 16 years”. That section provides:

“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.”

95. Conduct in relation to a person under the age of 18 years which would fall within the definition of child abuse referred in s 91FB if the person was aged under 16 years, would unarguably be relevant to the Tribunal’s consideration of whether a particular person posed a risk to the safety of children aged under 18 years. That flows from the obligation to take into account the paramount consideration specified in s 4 of the Working with Children Act earlier discussed, the safety, welfare and well-being of children, namely those aged under 18 years and, in particular, protecting them from child abuse.

96. The Tribunal’s approach to the resolution of what lay before it, did not depend on whether CFJ had committed any offence. What it had to determine was whether the evidence established that he posed a risk to the safety of children. In undertaking that task, the Tribunal “conflated” none of the statutory provisions to which it referred and did not misconstrue any of these statutory schemes.

97. Before the Tribunal, there was evidence that both State and Federal Police had investigated matters referred to it and that CFJ had not been charged with any offence. There was no suggestion that what the Tribunal was called on to consider could establish that CFJ had committed any offence under State legislation. The parties made no reference to any of the Commonwealth offences.

98. The Tribunal was thus correct to observe that it was not alleged that CFJ had saved any “child abuse material”, as defined in s 91FB of the Crimes Act, to his computer. It was also not suggested that CFJ had committed an offence under s 227 of the Children and Young Persons (Care and Protection) Act. Accessing “child abuse material”, that is pornographic images of females aged under 18 years for the sexual gratification which he described in his evidence, was, nevertheless, clearly relevant to its determination of whether CFJ posed any risk to the safety of children, that is, those aged under 18 years, even if no criminal offence was thereby committed under State law.

99. It follows that the Tribunal’s observations at [126] involved no improper conflation of the different statutory definitions of child abuse, as was contended for CFJ.

100. Nor did the Tribunal err in its consideration of what it identified to have been serious matters alleged against CFJ, which led to his dismissal by the School. Its approach accorded with the obligations imposed upon it by ss 15 and 30 of the Working with Children Act, to take the seriousness of those matters into consideration.

101. In the result it must be concluded that these grounds of appeal were not established.

Ground 5 – was CFJ denied procedural fairness by receipt of the opinions expressed by the unidentified doctor in the School’s report?

102. It was submitted that the Tribunal’s reliance on what was contained in the School’s report to the Ombudsman was erroneous and that it was not clear as to why it considered it appropriate to give what the unidentified doctor had there concluded any weight. It was also argued that CFJ had been denied procedural fairness, when the doctor had not been called to give evidence and CFJ had been given no opportunity to cross-examine her.

103. Reliance was placed on the observation in Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 at [148] that “A tribunal will frequently have to take affirmative steps to ensure that it understands the issues presented to it and that the applicant understands the nature of and limitations on its powers.” At [151] reference was made to observations in MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 as to what a presiding judge in a criminal trial may do, in giving explanations to an unrepresented accused person, where it was said at 524:

“However, there should be no difficulty in explaining to an accused person (in the absence of a jury) that it is necessary for the judge to hear evidence in the absence of the jury to enable him to decide whether the evidence of the confession should be admitted, that the accused may cross-examine the Crown witnesses and give and call evidence himself on the issue of voluntariness, that if he does give evidence he may be cross-examined, and that his answers on cross-examination may be used against him on the trial. It would be wrong to think that a judge who explained to an accused person the choices open to him would be playing the part of an advocate – he would be performing his duty as a judge by informing the accused of his rights in relation to the conduct of the trial.”

104. Unquestionably the Tribunal will also have to give unrepresented parties appropriate assistance in explaining how the proceedings are to be conducted and procedural options which may be available to them

105. A review of the transcript of the proceedings reveals that assistance of that kind was given. That the Tribunal failed to provide CFJ the required assistance was not established, despite the case advanced on appeal that CFJ should have been informed that he had the right to object to the receipt of the School’s report and that he could require the doctor who expressed opinions in the report to be called for cross-examination.

106. Reliance was placed on Commissioner for Children and Young People v FZ [2011] NSWCA 111, where an application under the Commission for Children and Young People Act 1998 (NSW) declaring that Part 7 Division 2 of the Act did not apply to the defendant, arose for consideration. Evidence of a statement made by a person, KB, in relation to allegations of indecent assault in 2000, with which FZ had never been charged, was received at that hearing, but KB was not called for cross-examination. It was there observed at [53] – [54]:

“53    His Honour noted at [23] that when KB's statement was admitted on the first day of hearing, the Deputy President of the Tribunal said that she agreed with Mr Beckett that it would be a departure from the Tribunal's usual procedure to allow the evidence to be admitted where there was no cross-examination, but the material was relevant and some regard ought to be given to the allegations and the respondent would have an opportunity to answer them.

54   The primary judge pointed out at [42], relying on what Rothman J had said in Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315 at [84], that natural justice requires that a party have the opportunity to controvert the opponent's evidence and that often "the only practical means of controverting evidence will be to cross-examine.”

107. The circumstances which here arise for consideration are quite different. Given the statutory requirements I have earlier discussed, that CFJ had the right either to object to the receipt of the School’s report, or to require the doctor who advised the School to be called for cross-examination, is not apparent.

108. The rules of evidence did not apply to the proceedings, but the Tribunal had to afford CFJ natural justice. What that required was informed by the requirements of the statutory regimes under which his application was advanced, the obligations thereby imposed upon him and the Guardian, as well as those which regulated the exercise of the Tribunal’s statutory functions.

109. In Italiano v Carbone & Ors [2005] NSWCA 177 it was observed at [88] that:

“88    To demonstrate procedural fairness it is usually necessary to show that a claimant “lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”, as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

‘A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations.’ : at [37].”

110. When the way in which the proceedings were conducted by the Tribunal are considered in light of all of the relevant provisions of the statutory schemes which regulated its consideration of CFJ’s application for a clearance under the Working with Children Act, which I have discussed, I am satisfied that the conclusion that he was denied procedural fairness, is not open. CFJ was not deprived of an opportunity to put any information or argument, on which he wished to rely, to the Tribunal in relation to the matters dealt with in the School’s report. To the contrary, he conducted his own analysis of the matters there dealt with, which on this appeal it was submitted the Tribunal should have accepted. Thereby he contradicted the case put against him by the Guardian.

111. Those who had expressed opinions as to the ages of the females depicted in the websites investigated by the School, were not, it is true, called at the hearing by either the Guardian or CFJ. The School was not a party to the proceedings. Section 46 of the Civil and Administrative Tribunal Act empowered the Tribunal itself to call and examine witnesses of its own motion, but it was not suggested on this appeal that was a power which the Tribunal should have exercised in the circumstances before it.

112. These were not adversarial proceedings such as those brought before a court, where the onus falls on the applicant, the rules of evidence apply and objection can be taken to the receipt of an otherwise admissible document, unless a person who expresses opinions there recorded are made available for cross-examination.

113. These were, rather, closely regulated administrative proceedings brought by CFJ under the Administrative Decisions Review Act, in which express obligations were imposed by the Working with Children Act on CFJ and the Guardian, to place relevant material before the Tribunal, so that it could undertake the statutory functions imposed upon it. Section 38 of the Civil and Administrative Tribunal Act not only provided that the rules of evidence did not apply to those proceedings, it also obliged the Tribunal itself to “ensure” that all relevant material was disclosed, “so as to enable it to determine all of the relevant facts in issue in any proceedings”.

114. The School had made a report to the Ombudsman, in compliance with its statutory obligations, which triggered the steps which led to the cancellation of CFJ’s clearance. That the Tribunal did not inform CFJ that he had the right to object to its tender, is well explained by obligations imposed on him, the Guardian and the Tribunal, to ensure that the report was before it as a matter relevant to its consideration of his application. There was also an obligation imposed on the Tribunal by s 30(1)(k) of the Working with Children Act to consider “matters that the Children’s Guardian considers necessary”.

115. Consistent with the obligations imposed on CFJ by s 27(4), he did not object to the tender of the School’s report, but met the advice the School had received from the doctor, by the analysis which he undertook of the websites the doctor had accessed.

116. Natural justice certainly required that CFJ be given an opportunity to be heard on what the Tribunal should make of the School’s report. The Tribunal thus had to ensure that CFJ had the opportunity to put before it his case in relation to that material. CFJ had that opportunity. That CFJ also had the right to require any of those who had expressed the opinions appearing in the School’s report to attend to be cross-examined before the Tribunal, is not apparent. The School was not a party to the proceedings. The advice it had received and the steps it had taken in light of the obligations imposed upon it under the Ombudsman Act, were not in issue in the proceedings before the Tribunal.

117. CFJ met the School’s report as to the use which he had made of its computers when he accessed the websites Dr Watt had identified, by the analysis which he himself undertook, which he advanced in his written submissions. His case was supported by the letter from Dr Tanner which he tendered; his reliance on Mr Klein’s report; and the submissions which he advanced, where he also addressed the weight which the School’s report should be given.

118. A review of the transcript of the proceedings reveals that CFJ was given a fair opportunity to advance his case. At relevant points, the Senior Member explained to CFJ and his father what fell to the Tribunal to decide in the proceedings and how the proceedings would be conducted by way of evidence and submission.

119. CFJ was given a real opportunity to advance his case that the opinions expressed in the School’s report would not be accepted, by the evidence he led; the submissions advanced; and by answering questions posed to him directly by the Senior Member, including in relation to his own analysis of the images depicted on the websites which the computers he had used had been identified as having accessed. In its decision the Tribunal considered the case which he so put and explained why it was not accepted.

120. In the result, I consider that this ground of appeal was also not made out.

Ground 4 – did the Tribunal fail to give adequate reasons?

121. In Ainger v Coffs Harbour City Council [2005] NSWCA 424, the authority relied on for CFJ, what was in issue was the adequacy of a trial judge’s reasons for a decision given in civil litigation, not the adequacy of reasons given by an administrative decision maker such as the Tribunal. Their respective obligations are not necessarily identical.

122. In the Tribunal’s case, it was s 62 of the Civil and Administrative Tribunal Act which obliged it to set out in its written statement of reasons:

“(a)   the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)   the Tribunal’s understanding of the applicable law,

(c)   the reasoning processes that lead the Tribunal to the conclusions it made.”

123. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 it was observed at [43] that in the case of a statutory scheme such as this, which imposes a statutory duty to give reasons, it is the content of that statutory duty which “defines the statutory standard that a written statement of reasons must meet to fulfil it.” At [48] it was said that what was there required “to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself”.

124. In the case of s 62 of the Civil and Administrative Tribunal Act, what the Tribunal had to expose was the path of reasoning which led it from its findings on material questions of fact, referring to the evidence or other material on which those findings were based, as well as its understanding of the applicable law, to the conclusions which it reached.

125. On an appeal such as this, the Tribunal's reasons should not "be construed minutely and finely with an eye keenly attuned to the perception of error". Nor should they be “scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed"; and the appeal must not be turned into "a reconsideration of the merits of the decision" (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 at [30]).

126. I have already discussed the findings of fact which the Tribunal made on the evidence to which it referred; its examination of the applicable law; the reasons it gave for approaching the evidence in light of the Briginshaw principle; and the conclusions which it reached. CFJ’s contention that it had not adequately explained its path of reasoning to those conclusions, relied particularly on what was observed at [84] of the judgment, where the Tribunal said that:

“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”.

127. At this point of the judgment, the Tribunal was considering the requirements of s 30 of the Working with Children Act, under the heading “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”.

128. After noting that CFJ had not been charged with any criminal offence relating to possession of child abuse material; that it had not been alleged that he had saved any such material to his computer; finding that he had looked at websites which contained images of persons who appeared to be under the age of 18; observing that the School’s report to the Ombudsman was not open to review in the proceedings; noting that CFJ took issue with whether any reportable conduct had occurred; that it was the Guardian’s decision which was under review, the risk assessment it had undertaken having been triggered by the action taken by the Ombudsman, the Tribunal turned to the question it had to be consider:

“[71]   … 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.”

129. The Tribunal then noted at [72] the School’s allegations; at [74] CFJ’s denial that he had looked for the word “teens” or “schoolgirls” on the Internet; at [75] that he had relied on Mr Klein’s report, prepared for other proceedings and that neither he nor Mr Watts had been required for cross-examination on their reports. The Tribunal then referred to what their reports contained, before turning to what was dealt with in the School’s report at [78] and what CFJ had written to the School about his use of its computers to access pornography. What the Tribunal said at [84] has to be considered in its context. That context is:

“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.

88   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.

89   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.

90   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.

91   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.”

130. So understood, it cannot be accepted, as contended for CFJ, that without adequate explanation at [84] the Tribunal accepted the Guardian’s submissions and rejected those of CFJ as to his search for images other than “women”, without disclosing its path of reasoning, which led it from its findings on material questions of fact, to its adverse conclusions.

131. To the contrary, I consider that fairly read, what the Tribunal said both immediately before and immediately after what it observed at [84], satisfied its obligations under s 62 of the Civil and Administrative Tribunal Act, to explain why it was that the Tribunal did not accept CFJ’s evidence that by his use of the word “girls” in his searches, he was looking only for the images of women, that is those aged over 18 years, in which he claimed he only had an interest.

132. This ground of appeal was also not made out.

Grounds 3 and 7 - was the Tribunal’s decision legally unreasonable?

133. There was no issue between the parties that in order for these grounds of appeal to succeed, unreasonableness of the kind discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [63] to [76] must be established. That encompasses not only the irrational or bizarre, that is a decision "so unreasonable that no reasonable person could have arrived at it", but also unreasonableness "objectively drawn even where a particular error in reasoning cannot be identified" (at [68]); as well as matters such as bad faith, dishonesty, attention given to extraneous circumstances and disregard of public policy (at [69]); and failure to give adequate weight to a relevant factor of great importance, giving excessive weight to an irrelevant factor of no importance, or reasoning illogically or irrationally (at [72]).

134. As observed in Li at [67], consideration of whether such an alleged error has been made requires consideration to be given to the true construction of the statute under which the decision in question was made, because "the question to which the standard of reasonableness is addressed is whether the statutory power has been abused".

135. This ground of appeal was particularly directed to the conclusions which the Tribunal reached at [87] - [91] earlier quoted. It was submitted that they were illogical and irrational, given that there was no probative evidence that CFJ posed any risk to children. None of the images which CFJ had accessed were in evidence. That was necessary, it was contended, because none of the images had been properly analysed by a qualified expert and the evidence that any of those depicted was under the age of 18 years was based only on hearsay opinions, expressed by persons unqualified to express such opinions.

136. I have already discussed the requirements of the statutory schemes under which the Tribunal's decision was made. There was no error in the view which it took that those girls aged under the age of 18 years, whose naked images are displayed on pornographic sites available to be viewed on the internet, are victims of exploitation, they being "unable to consent to their images being used in a sexualised forum to achieve profit for the pornography industry".

137. On any view such exploitation involves child abuse of the kind with which s 4 of the Working with Children Act is concerned, the safety, welfare and well-being of such children thereby being put at risk. Those whose interests lead them to view such pornography not only support that abuse, but are themselves involved in putting at risk the safety, welfare and well-being of the children involved in its production.

138. CFJ contended that the Tribunal's decision was, nevertheless, legally unreasonable and plainly wrong, because all he had done was to engage in perfectly lawful activity, which was incapable of providing any basis for a finding that he posed a risk to the safety of children.

139. The case advanced in written submissions was that there was no evidence that CFJ had actually viewed any of the images that depicted persons said to be under the age of 18 years; that there was insufficient material to establish that he had viewed any particular image; that his evidence was that he had not viewed or deliberately viewed images of those who had the appearance of being under 18 years; that he had no interest in viewing pictures of teenagers or children; that he had never sought to view such pictures; and that he had never searched for “teens” or “schoolgirls” on the internet.

140. The evidence of CFJ having accessed such images was so weak, it was argued, that the Tribunal’s chain of reasoning was illogical and irrational, particularly when account was taken of the fact that police examination of the computers had not led to the laying of any charges and where there was evidence that Senior Constable Whitfield had advised the Guardian that the images Dr Watts had found had not been located on examination of the computer.

141. It was also submitted that the only person who had undertaken a proper analysis of the URL websites Dr Watts had identified was CFJ and it was illogical and irrational for the Tribunal not to have accepted it.

142. It was also contended that the Tribunal had an obligation to inform CFJ as to his right to object to the receipt of the evidence of their opinions as to the ages of those depicted in the images they had examined, they not being qualified to express such opinions.

143. None of these submissions may be accepted.

144. The Tribunal’s decision was not unreasonable in the Wednesbury sense.

145. While it was contended that Dr Watts had not examined any images, fairly read it must be accepted that his reports indicate that he did view images stored on the computer hard drive, as well as those on websites that CFJ had accessed. So did the doctor commissioned by the School to examine such images. CFJ addressed their opinions in his own analysis, having himself accessed such images.

146. Before the Tribunal there was no suggestion that it was anyone other than CFJ who had used the computers to access any of the sites Dr Watts had identified. There was ample evidence open to the Tribunal to accept that before his dismissal, CFJ had there viewed images which depicted naked females under the age of 18 years.

147. CFJ denied that he was interested in, or had viewed images of those who appeared to be aged under 18 years, although accepting that some of the images depicted those aged 18 or 19 years. The Tribunal was not obliged to accept CFJ's evidence about his use of the School’s computers; his lack of interest in females of that age; or his opinion that none of those depicted were aged under 18 years. Some of his evidence was contradictory. In some respects he sought to resile from admissions which he had made to the School in its investigations. His credit was thus in issue. Making findings on credibility was part of the Tribunal’s functions (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67]). In resolving the issue as to his credit, it was entitled to accept or reject CFJ’s evidence, either in whole or in part.

148. CFJ relied on Mr Klein’s report. CFJ had not instructed him with images he had accessed; Mr Klein did not himself examine the computer; nor did he access the websites which Dr Watts and the doctor the School engaged accessed.

149. Mr Klein disagreed with many aspects of Dr Watt's report, including what search terms using the word “girl”, for instance, would result in, but he did agree that the term “Lolita” was parlance for material depicting underage girls. He considered it to be relevant, however, that none of the search terms recovered from the computers had used that word, which he noted was also a word used in legal, adult pornography.

150. CFJ relied on Mr Klein's opinion that while it was relatively straightforward to recover records of websites that had been accessed on a computer, it was more difficult to determine whether a particular image had there been viewed. It was Mr Klein’s view that the metadata Dr Watts had considered made it impossible to confirm that it was CFJ who had used the computer to access the sites Dr Watts had identified had been visited. Dr Klein also outlined what a forensic examiner would have to do, to confirm that a particular image had been viewed.

151. Before the Tribunal, however, there was no question that it was CFJ who had used the computer. Relevant to the Tribunal’s consideration was thus not only what CFJ had viewed on the websites he had accessed, but what he had searched for.

152. The submission on appeal, that the only probative evidence of the ages of those depicted on the websites CFJ accessed, was by tendering the images, may not be accepted. CFJ was the applicant. While no onus fell upon either party, it was relevant to the Tribunal's consideration of their respective cases, that in cross-examination CFJ had identified the “alex” home page as being one that he had visited and that he then said that he had images to tender, in support of his case. That was an obvious way by which he could have established that images which he had viewed, did not depict females under the age of 18 years, contrary to the opinions expressed in the School’s report and by Dr Watts.

153. Thus it was relevant to the Tribunal’s consideration that after the warning which he was given by the Senior member as to self-incrimination, when the image of the “alex” home page was sought to be tendered, that CFJ did not himself tender any of the images he said he had to produce. It was open to the Tribunal to infer that he took that course deliberately, perceiving it to be to his advantage.

154. As discussed in Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609 at [20], this was not a situation where the Tribunal was obliged to secure evidence of the images from CFJ. It had rejected the tender of the images which the Guardian sought to rely on, to make out its case. It was open to CFJ not to tender the images which he said he had available, but he having made that decision, the Tribunal had to decide the issues lying between the parties on the evidence which was before it.

155. There has been consideration given to whether, even in criminal proceedings, when defending child pornography charges, or later on sentence, images must be tendered. Use of such material is possible, being the subject of defences such as those specified in s 91HA Defences of the Crimes Act and s 474.24 “Defences in respect of child abuse material” of the Criminal Code.

156. In R v Miao [2016] NSWDC 181, for instance, the prosecution’s tender of what was said to be a representative sample of the images and videos the subject of the charges was rejected, Berman DCJ taking the view explained at [9]-[11], that it was unnecessary to view the material, in order for him to understand the gravity of an offence of possessing such material, given what was otherwise in evidence, as to what was depicted on that material.

157. In PFC v R [2011] NSWCCA 275, by way of comparison, there was a complaint on appeal that defence counsel had failed to tender at trial material which would properly be regarded as child pornography and which the appellant contended had been prepared by the complainants. At [132] it was concluded that the approach which counsel correctly took to that material, was that he would not tender it in the trial, unless he was able to see some forensic advantage and that the disadvantage was that it left the appellant open to the inference that he had created that material.

158. In this case Guardian had made the forensic decision that CFJ should be cross-examined about the images depicted on the “alex” home page, which he conceded that he had accessed and that they should be tendered, relevant as they were to its case that he had viewed images which depicted those under the age of 18 years.

159. That the refusal of the tender accorded with the requirements of s 38 of the Civil and Administrative Tribunal Act, which obliged the Tribunal to ensure that all relevant material was disclosed, so as to enable it to determine all of the relevant facts in issue in the proceedings and to ensure that the Guardian had a reasonable opportunity to be heard on relevant material, is doubtful. It would seem that the images should have been received given the requirement in s 30(1)(f) to consider matters that the Guardian considered necessary.

160. Understandably, rejection of the tender of those images was not something to which CFJ objected. He could, of course have himself tendered those or the other images which he said he had available. It was his own forensic decision not to tender other images which he said supported his case that he had not viewed images depicting women who appeared to be under 18 years.

161. In those circumstances it is not open on this appeal for CFJ either to contend that he was denied procedural fairness by images not being put before the Tribunal, or that this was the only way that the ages of those there depicted could have been determined, given his case that his own analysis and opinions as to the ages of those depicted in the images should be preferred over those of Dr Watts and the doctor the School engaged, who had also viewed them.

162. In the case of the School’s report, the doctor who had examined the images had not only considered the apparent age of females there depicted, but also used the “Tanner scale”. CFJ tendered a letter, a copy of which he had apparently found on the internet, said to be written by Dr Tanner and an associate, in which the limitations of that method, when determining age, were described. That was a matter to which the Tribunal expressly referred, but it was a consideration which did not preclude acceptance of the doctor’s opinions as to the apparent ages of the females depicted there.

133. The Tribunal was not bound by the rules of evidence, but even in cases where those rules do apply, a court is entitled to receive evidence of lay people's opinions as to someone's apparent age. In Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, for example, it was observed at [91] that matters such as the apparent age of a person are amongst those about which witnesses may express opinions, notwithstanding that they have no special qualifications. There is an observation to similar effect in Partington v R (2009) 197 A Crim R 380; [2009] NSWCCA 232 at [46].

134. These administrative proceedings were concerned with CFJ’s challenge to the Guardian’s cancellation of his clearance under the Working with Children Act, after dismissal by a School which had to come to a view as to whether it was obliged to make a statutory report to the Ombudsman, in relation to his use of its computers to access images of unidentified, naked females, whose actual age could not be objectively established. Thus the School sought the advice of a doctor as to their apparent age. In the unfair dismissal proceedings the School also commissioned an expert to report on CFJ’s use of its computers, who also expressed opinions as to the apparent age of some of those depicted in images referred to in those reports.

135. This material was unarguably relevant to the Tribunal’s consideration of CFJ’s application, as was his evidence as to the apparent age of those depicted on the images he had viewed.

136. The question for the Tribunal to determine was whether the conduct established on the evidence was such as to provide a foundation for the conclusion that CFJ’s application should succeed, because it was open to conclude that he did not pose a risk to the safety of children, their safety, welfare and well-being and in particular, protection from child abuse, was the paramount consideration under the Working for Children Act.

137. The Tribunal was persuaded that it could not come to that conclusion, because it was unable to accept CFJ's evidence about relevant matters.

138. It concluded at [87], for example, that CFJ’s written admission to the School of having used its computers to access pornographic material, by comparison to the case advanced before it, had involved "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’" and that the distinction he sought to draw in his case between pornography and naked images was “tendentious”. It also considered at [99] that he "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.”

139. That conclusion was open from CFJ’s own evidence, that he had accessed websites which had images described to be of “teens”. That word, after all not only describes those aged 18 and 19 years, but also those aged 13, 14, 15, 16 and 17 years. He had also searched for sites using that term. Having done so, the Tribunal was not obliged to accept his denial of having been interested in, or having viewed images on those sites of naked females aged under 18 years.

140. The Tribunal was also entitled to take into consideration evidence such as Dr Watt's second report, which indicated amongst other things, that the computers’ browser history showed that one site with the name “teenport” in the URL, which had 24 visible images, had been visited 104 times and that the URL had been typed 111 times. The inferences available from that evidence, contrary to the evidence which CFJ gave, that he had no interest in those aged under 18 years and that he not searched for sites using the word “teen”, was that having repeatedly typed that word into the computer, in order to access this site, he did have an interest in images of “teens”, including those aged under 18 years and that when he visited sites where they were depicted, he viewed those images.

141. The contention that although images of persons under 18 may have been depicted on the websites that the computer CFJ used had accessed, there was insufficient evidence that he had viewed any particular image, cannot be accepted, nor can the contention that the conclusions the Tribunal reached on the evidence it discussed, were unreasonable in the Wednesbury sense.

142. The conclusion that CFJ was interested in and did view pornographic images of those apparently aged under 18 years was open on all of this evidence, as was the inference that he gained sexual satisfaction from viewing those images. The evidence also left well open the view to which the Tribunal came, that he posed a risk to the safety of children, bearing in mind the paramount consideration it had to take into account; the safety, welfare and well-being of children aged under 18 years and, in particular, protecting them from child abuse. That was neither an irrational or illogical conclusion on the evidence which the Tribunal had to consider, approached in the way discussed in Briginshaw.

143. Accordingly, this ground too must be dismissed.

Orders

174. For these reasons, the appeal must be dismissed.

175. The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) in those circumstances is an order that CFJ pay the Guardian’s costs, as agreed or assessed. Unless the parties approach within 14 days, that will be the Court’s order.

176. Otherwise, I order that:

1. Leave to commence the proceedings out of time is granted.

2. Leave to appeal is granted, but the appeal is dismissed.

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Decision last updated: 18 November 2016