CGP v Children's Guardian

[2017] NSWCATAD 12

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CGP v Children's Guardian [2017] NSWCATAD 12
Hearing dates:	8 September 2016
Date of orders:	10 January 2017
Decision date:	10 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member E Hayes, General Member
Decision:	(1) The decision of the Children’s Guardian dated19 October 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is set aside. (2) The applicant CGP shall be granted a Working with Children Check clearance by the Children’s Guardian within 28 days of the date of these orders. (3) Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited.
Catchwords:	ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal – assessment trigger by clause 1(6) of Schedule 1 to the Child Protection (Working with Children) Act 2012 - whether the applicant poses a risk to the safety of children - onus of proof in a review under section 27 - a real and appreciable risk is not posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse - the correct and preferable decision is to grant a working with children check clearance.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BGX v Children's Guardian [2014] NSWCATAD 173 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWCATAD 65 BKV v Children’s Guardian [2015] NSWSC 1602 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 BVT v Office of the Children’s Guardian [2016] NSWSC 1169 BYR v Children’s Guardian [2013] NSWADT 310 BZU v Children’s Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 Children’s Guardian v BQJ [2016] NSWSC 869 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CGP (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: D Ward (Applicant) V Hartstein (Respondent)   Solicitors: Legal Aid NSW (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510719
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The applicant is known by the pseudonym “CGP” in these proceedings in order to protect the identity of the applicant in accordance with Procedural Direction 9 of the NSW Civil and Administrative Tribunal. On 13 November 2015 CGP filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning a decision of the Children’s Guardian, made on 19 October 2015, to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

2. This application appears to have been made sometime in 2014, based on the records from the Children’s Guardian. On 19 October 2015 a notification letter was sent by the Children’s Guardian to the applicant informing him that his application was refused.

3. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 do not apply to this particular matter due to the date of the application: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.

4. The applicant is subject to a risk assessment by reason of sections 14 and 15, Schedule 1 clause 1(6) of the Act. Clause 1 (6) provides:

(6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.

5. The applicant wishes and requires to obtain a working with children check clearance, in order to continue to be a kinship carer with his de facto wife and to assist with coaching sporting teams. The applicant’s de facto wife was allocated sole parental responsibility by the Children’s Court in relation to the applicant’s niece and nephew in March 2016.

6. On 18 May 2015 the Children’s Guardian advised the applicant that it was proposed to refuse his application and a risk assessment would be conducted and invited him to provide additional information in support of his application.

7. The applicant is without a Working with Children Clearance now, preventing him from working in “child-related work”: subsection 6(2) and section 8 of the Act; clauses 5, 7 of the Child Protection (Working with Children) Regulation 2013.

8. This is an application pursuant to section 27 of the Act. The application for review was heard by the Tribunal on 8 September 2016. A previously scheduled hearing could not proceed at that time.

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

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

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

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

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

14. It is doubtful that the Tribunal may lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in his chosen area is not permitted by the legislation.

15. An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

16. The Tribunal has been assisted by the parties’ legal representatives and their respective submissions.

The evidence relied upon in the hearing

17. The applicant relied upon the following documentary material:

1. Statement by the applicant CGP filed 22 February 2016 - Exhibit A1;

2. Statement of the de facto wife of the applicant filed 22 February 2016-Exhibit A2;

3. Bundle of Further Material Relied on by the applicant filed 18 March 2016 -Exhibit A3;

4. Submissions the applicant filed 3 May 2016 2016 -Exhibit A4;

5. Application for Administrative Review filed 13 November 2015 -Exhibit A5.

18. The respondent relied upon the following documentary material:

1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 17 December 2015, comprising 212 pages - Exhibit R1;

2. Documents produced under request pursuant to section 31 of the Act filed 21 May 2016 comprising 68 pages - Exhibit R2;

3. Further documents filed by the respondent on 21 April 2016 comprising 215 pages - Exhibit R3;

4. Further documents filed by the respondent dated 26 August 2016 comprising 11 year pages-Exhibit R4;

5. Outline of submissions by the respondent’s counsel dated 21 April 2016 and filed the same date-Exhibit R5;

6. Test booklet for Millon Clinical Multiaxial Inventory- III completed by the applicant’s psychologist.

19. The applicant, his de facto wife and a psychologist gave oral evidence and were cross-examined on 8 September 2016.

20. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil onus of proof which is the balance of probabilities.

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

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

22. This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.

23. Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

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

24. The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted:

“[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36].

[72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.

…

[74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

25. The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis “) at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to 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.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

26. The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil onus to determining a factual matter: CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61]. Another Supreme Court decision in relation to section 27 of the Act, which is restricted as to publication, is the decision in BKV v Children’s Guardian [2015] NSWSC 1602. It is not currently known whether that latter decision has any impact upon the interpretation of the relevant provisions.

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

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

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

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

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

Legislative Provisions relevant to the decision

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

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

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

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."

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

“Child and young person abuse

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

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

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

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

is guilty of an offence.

Maximum penalty: 200 penalty units.”

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

"Object of Act

The object of this Act is to protect children:

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

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

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

35. "Conviction" as defined in section 5 (1) of the Act “includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.”

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

“14 Assessment requirements

A person is subject to an

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

37. The applicant was properly the subject of a risk assessment due to the provisions of clause 1(6) of Schedule 1 of the Act which has been previously extracted in these reasons.

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

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

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

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

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

43. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

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

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

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

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

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

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

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

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

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

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

52. In the following paragraph the Minister stated:

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

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

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

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

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

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

The Issue

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

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

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

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

Considerations and the Evidence

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

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

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

64. Section 15 of the Act provides as follows:

15 Assessment of applicants and holders

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

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

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

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

65. Section 30 of the Act provides in relation to this application as follows:

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

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

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

67. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act. In BVT v Office of the Children’s Guardian [2016] NSWSC 1169, Adamson J found, however, in relation to an application for an enabling order under section 28 of the Act, that it was an error to interpret the plea of guilty in that case to findings of the Court and admissions of the applicant, at [58]:

“[58] The Tribunal was not bound by the laws of evidence: s 38 of the NCAT Act. It was therefore entitled to take into account the contents of the documents produced by the District Court, including: the plaintiff’s record of interview; the witness statements; and the police facts, although the witness statements and police facts would not have been admissible as evidence under the Evidence Act 1995 (NSW). If that is what the Tribunal had done in the present case, there could have been no proper grounds for complaint. However, by elevating the matters in these documents to the status of findings by the sentencing judge and admissions made by the plaintiff, the Tribunal misapprehended the legal effect of the plaintiff’s plea.”

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

68. The applicant is not a disqualified person.

69. The purpose of the risk assessment is protective of children and not punitive of the applicant, as earlier stated. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children.

70. The applicant acknowledges that he has been involved in a number of violent offences. The applicant has a history of alcohol abuse. There are four main offences which are relied upon by the Children’s Guardian to establish that there is a history of violent behaviour sufficient to warrant the risk assessment on the basis of a pattern of behaviour.

71. The applicant does not disagree that these offences occurred. The applicant received punishment for those offences. There is no single offence which caused the refusal of a clearance. The assessment of the seriousness of the applicant’s behaviour is based upon a number of offences. It was submitted on behalf of the applicant that his conduct is at the lower end of the seriousness scale. The applicant has not been incarcerated for any of the offences relied upon by the Children’s Guardian.

72. On 17 March 2002 the police were called to the applicant’s home where his de facto partner was being treated by ambulance officers. She had allegedly been kicked by the applicant and she had a broken arm. The broken arm allegation was denied by both the applicant and his de facto wife. Both of them had been drinking alcohol. It was alleged that the applicant held a knife to her throat. This was also denied by both the applicant and his de facto wife. The applicant was charged with assault occasioning actual bodily harm. The applicant was placed on a section 9 bond under the supervision of the Probation and Parole service for 12 months.

73. On 13 April 2002 the applicant and his de facto wife had been drinking. The applicant was yelling at his partner alleging that she had been “cheating” on him. The applicant punched a number of holes in the wall and then grabbed a bag of ice from the freezer and threw it at his partner. The bag of ice struck her on the left forearm. The applicant pleaded guilty to common assault and contravening an apprehended domestic violence order. The applicant was sentenced to a section 9 bond to be of good behaviour for a period of 12 months and to attend a program of counselling as directed by Probation and Parole, including anger management, drug and alcohol and family counselling. On the contravening the apprehended domestic violence order conviction the applicant was sentenced to 6 months imprisonment suspended on entering into a section 12 bond and to be supervised by Probation and Parole for six months.

74. The third matter relied on by the Children’s Guardian occurred on 6 December 2008. The applicant and his de facto wife were walking home with two friends after a party. They came across another person who commenced to repeatedly call the de facto wife “a home wrecker” and “a slut”. The applicant confronted his de facto wife and they began to argue. The de facto wife pushed him away and kicked at him to get away from her. The wife then flagged down a passing police car who drove her to her friend’s house. The following day the applicant rang the de facto wife and accused her of having sexual relations during the night at the place where she stayed. The de facto wife went to the police station. The applicant was also brought to the police station by a friend. The applicant got out of the car and ran at the de facto wife who was still in the driveway of the police station. The applicant held a large rock in his right hand in a threatening manner. The applicant yelled abuse as she approached him. The de facto wife ran and hid while a police officer grabbed the applicant and removed the rock from him after a struggle. The applicant was charged with common assault, intimidation, and resist an officer in the execution of his duty. The applicant was placed on a section 9 bond under the supervision of the Probation and Parole service to obey all reasonable directions for counselling, educational development, or drug and alcohol rehabilitation for 18 months. The applicant was fined $200 for common assault, and $200 on the other charges.

75. On 25 December 2012 a band was playing in the main street of the country town in which the applicant and his de facto wife resided. Many people were in attendance and many of those were drinking alcohol. There were fights which broke out sporadically amongst various groups of people. The applicant attempted to break up a number of the fights. One particular person attempted to assault the uncle of the applicant, who was an older man. The applicant punched the aggressor once to the head and knocked him out. The applicant entered a plea of guilty. The applicant was convicted of assault occasioning actual bodily harm and fined $200.

76. The sentences reflect the matters referred to in the relevant sentencing provision. The remarks on sentence have not been provided to the Tribunal. The sentence is not an assessment of the risk (if any) the applicant may pose to children but is an attempt to punish and by reason of the supervision orders, an attempt to educate the applicant as to the Criminogenic risk factors for each of the offences.

77. The Tribunal notes that only one of the sentences was a suspended sentence. The submission on behalf of the applicant is accepted that the offences whilst serious, are not high on the scale of seriousness.

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

78. The time which has elapsed since the most recent offence is four years.

79. The applicant was attempting to quell a disturbance in 2012. The offence which occurred in 2008 was perhaps the low point in terms of the applicant’s behaviour.

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

80. The applicant was 30 years old the time of the last domestic violence offence and 24 years old at the time of the first offence.

81. It is submitted on behalf of the applicant that he has matured with age, engaged in prosocial behaviour, has a stable employment history and has participated in the childcare responsibilities which have devolved upon him and his partner with approval from the Department of Family and Community Services. Significantly, the applicant has reduced his alcohol consumption.

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

82. The victim was in each event except the last was his de facto partner who is about 3.5 years older than the applicant. The victim was therefore aged approximately 33 years of age at the time of the last domestic violence offence and approximately 27 years of age at the time of the first offence.

83. The de facto partner was present with a child, who was aged about 1.5 years, when the applicant threatened her with a rock outside the police station. Other children have been present during the course of the other offences. The effect of violence on children is well-known and they do not have to be the subject of an assault in order to experience fear and for there to be an impact on their neuropsychological development.

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

84. The difference in age between the applicant and the victim in most of the offences, as referred to previously, is approximately three years.

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

85. The applicant knew that the primary victim in each event was not a child. Other people present including children, no doubt experienced fear as a result of conflict.

The person’s present age

86. The applicant is currently aged 39.

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

87. The applicant has a criminal history which is extensive.

88. The applicant has submitted that the offences on the criminal record are at the lower end of the seriousness ‘spectrum’ for violent offences.

89. The applicant submits and concedes that his criminal record identifies a lengthy history of alcohol fuelled offending. The applicant also submits that the endemic presence of alcohol in the applicant’s community, the social difficulties faced by the local community, and the general acceptance of drunkenness in the community are factors which should be taken into account by the Tribunal. It is more significant however, that the applicant has recognised that the excessive consumption of alcohol is inconsistent with the responsible care of children. It is of greater significance that the applicant has learned from his past behaviour to engage in more prosocial activities.

90. It is not necessary to set out the total criminal record of the applicant. In addition to the matters already referred to there are further convictions. Suffice it to say that the applicant has been convicted of hindering police, assault, resisting or hindering a police officer in the course of their duties, was the defendant in an apprehended domestic violence order, contravened an apprehended domestic violence order, and behaved in an offensive manner in or near a public place or school. The most significant punishment for those offences was $250 fine.

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

91. The respondent submits that the applicant is a risk to the safety of vulnerable young persons, including children, based upon the applicant’s failure to completely abstain from drinking alcohol. The respondent submits that even when he can control the amount that he has to drink, he behaves in a way which indicates poor choices, such as delivering a knockout punch. The applicant gave impressive evidence about this matter in particular before the Tribunal. It would appear, based upon his evidence, which is not contradicted by the police records, that the applicant was acting in a protective manner to a more vulnerable member of his social group. The aggressor in that circumstance would appear to be the person who was knocked out rather than the applicant. This is not to excuse the criminal offence and the fact that more serious consequences could have occurred by the actions of the applicant, but does place his behaviour in context. It is the Tribunal’s view that the applicant should cease consumption of alcohol altogether in order to eliminate the risk of any further violence. This may be the best way for the applicant to avoid any further criminal charges. Alcohol consumption, however, is not the only risk factor in relation to the applicant.

92. The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the conduct of the applicant independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.

93. The applicant relies upon the evidence of his own evidence and the evidence of the psychologist. If the evidence of the psychologist is accepted the applicant poses a low risk of repeating his behaviour.

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

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

96. The applicant was administered the Millon Clinical Multiaxial Inventory – III. In the responses recorded by the psychologist it is said that the applicant has shown limited insight into his past domestic violence, beyond alcohol and jealousy as the main precipitating factors. The applicant was limited in his ability to explain how this was resolved. The applicant tended to shift responsibility to his partner. The applicant identified limited strategies to manage anger, such as walking away. The violence in the past has been reactive rather than planned.

97. The applicant’s de facto wife identifies that the applicant has undertaken counselling in relation to alcohol and violence and their relationship has only improved since this occurred. The partner states that there has been no domestic violence since 2008. The applicant’s partner identifies that she was also violent in the relationship and while she does not agree with violence in a relationship, she takes some responsibility for the situations which developed. The applicant’s partner also says that as they have both matured, their relationship has improved and she considers the relationship is “in a really good place”. The applicant’s partner denies that she broke her arm in any incident or that the applicant used a knife in an incident.

98. The psychologist identifies the warning signs that the applicant is at increased risk of engaging in violence would include: “alcohol intoxication; engaging in frequent verbal arguments; experiencing anger dysregulation; believing that violence is warranted/justified.” The psychologist states in her opinion, based upon the applicant’s recent psychosocial functioning, these warning signs are not features of the applicant’s life at present and are unlikely to become significant concerns in the future because of his self-development.

99. There are therefore different sources of information which support the view that there is a low risk of repetition of behaviours which led to the risk assessment. The impact of a repetition of the past behaviour on any children appeared to the psychologist to be a motivating factor for the applicant to refrain from excessive consumption of alcohol or engagement in violence. There is very little reason to discount that statement to the psychologist and her opinion appears reasonable.

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

100. The applicant has provided information including his full criminal history.

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

Any other matters that the Children’s Guardian considers necessary

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

103. The Children’s Guardian submits that the applicant should not be granted a working with children check clearance and the application for review should be dismissed.

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

Consideration

105. The behaviour and conduct which triggered this assessment is serious domestic violence and an isolated incident of a one punch assault. In each instance alcohol was involved. The applicant continues to consume alcohol but says that he has moderated his intake. The absence of any more recent police reports would seem to indicate that he has moderated his alcohol intake and not participated in acts of violence whilst intoxicated in the recent past.

106. The Act is designed to be protective and the Minister’s second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk. The behaviour of the applicant was beyond reasonable community norms, was unplanned, but was part of a pattern of ongoing or escalating events. The legislature has proscribed behaviour which results in criminal charges and classified it as sufficient to render the applicant for a clearance subject to a risk assessment. That behaviour does not have to involve allegations about child victims. It is clear that offences listed in Schedule 1 of the Act involve a sexual element or some aspect of violation of the personal integrity of another person or serious harm to a living creature. The assessment trigger is activated where a person has been ‘convicted’ of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct sufficient to indicate a pattern of behaviour which is deemed a possible risk to the safety of children. The seriousness of the conduct is a particularly relevant factor to the risk assessment but is not the only consideration.

107. The behaviour is not recent, and the behaviour, if repeated, would do significant harm. Mitigating factors are considered previously, but genuine and sustained effort to remedy the conduct and past behaviour is present. Remorse on its own is not considered to be a factor that mitigates risk.

108. Until there is an acknowledgement of the extent of the applicant’s behaviour and appropriate action taken to address the causes of the behaviour, there remains an unacceptable risk of repetition of the behaviour. This is a well-recognised aspect of risk assessment particularly in relation to the risk to vulnerable children. While this application is far removed from unexplained injuries to children, the principles which are relevant in assessing the likelihood of repetition of abusive behaviour are instructive: see T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985, page 18; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124. A conscious understanding of the causes and the ability to address the risk of further threatening behaviours.

109. The applicant has conscientiously sought to address the causes of his violent past. The applicant impressed his psychologist as presenting with low, but functional intelligence. The applicant it was observed, correctly in the Tribunal’s own assessment, has limited verbal skills and his ability to express himself is reduced consistent with his level of intellectual functioning.

110. The applicant has undertaken a domestic abuse program and completed counselling. There has been no family violence since 2008. The applicant has provided reliable care to 6 children some of whom have special needs. The psychologist has assessed the applicant as having a low risk of repeating his past violent behaviour. There is no expert opinion to contradict that view. The opinions of the psychologist appear reasonable and based upon the facts which have been established by reference to the other material tendered in evidence.

111. The behaviour, if repeated, while working with children would be more likely than not to do significant harm to children.

112. The applicant has identified factors which mitigate in his favour. The applicant has been able to impress the Tribunal with his honesty, and the fact that he wants to be a good parent to the children currently placed in the care of his de facto wife. The Tribunal noted the applicant has maintained a good employment record so as to provide for his family.

113. The applicant has acknowledged and shown insight into the effects of his past conduct. The applicant has shown remorse. Remorse on its own, however, is insufficient to ameliorate risk.

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

115. In the circumstances of this matter, although the behaviours of the applicant in the past are significantly concerning, the applicant appears to have appropriately addressed the triggers and causes of his violent behaviour and has significantly matured.

Conclusion

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

117. Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

118. 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.

119. The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does not currently 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.

120. It is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant and the steps he has taken since those past events, that the existence of a real and appreciable risk to children has been disproven: see BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33].

121. 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 does not pose a risk to the safety of children and should receive a Working with Children check clearance. The decision of the Children’s Guardian should therefore be set aside and a clearance should issue.

Orders

122. The orders of the Tribunal are that:

1. The decision of the Children’s Guardian dated 16 November 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is set aside.

2. The applicant CGP shall be granted a working with children check clearance by the Children’s Guardian within 28 days of the date of these orders.

3. Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited.

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

Registrar

Decision last updated: 10 January 2017