CGS v Children’s Guardian

[2024] NSWCATAD 10

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

CGS v Children’s Guardian [2024] NSWCATAD 10

Hearing dates:

23 October 2023 and 18 December 2023

Date of orders:

10 January 2024

Decision date:

10 January 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Connor, Senior Member
S Davison, General Member

Decision:

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

                  (a) Indecent assault, of which the applicant was convicted on 21 November 1977;

(b) Indecent assault, of which the applicant was convicted on 25 March 1994;

(c) Indecent assault, of which the applicant was convicted on 25 May 1995.

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children clearance.

Catchwords:

ADMINISTRATIVE LAW-refusal of working with children check clearance-assessment of risk-indecent exposure and indecent assault convictions.

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Crimes Act 1990 (NSW)

Cases Cited:

Commission for Children and Young People v FZ [2011] NSWCA at 111
Commission for Children and Young People v V [2002] NSWSC at 949

CGS v Children’s Guardian [2016] NSWCATAD 228

Category:

Principal judgment

Parties:

CGS (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Hooper, K (applicant)

Solicitors:
Minter Ellison (applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00219810

Publication restriction:

Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

REASONS FOR DECISION

Background

1. The applicant, referred to as CGS in these proceedings, is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and seeks an enabling order pursuant to section 28 of the Act declaring that he not be treated as a ‘disqualified person’ so that he can be granted a Working with Children Check (WWCC) clearance.

2. Due to the sensitive nature of these proceedings, we confirmed that an order had been made under subsection 64(1) of the Civil and Administrative Tribunal Act2013 (NSW) that the name of the applicant and any child referred to in the evidence before the NSW Civil and Administrative Tribunal (the Tribunal) and the name of any other person which would identify the name of the applicant or child referred to in the evidence, is not to be published or broadcast without the leave of the Tribunal.

3. On 4 November 2015 the applicant was informed by the respondent that he was a ‘disqualified person’ by reason of him being convicted of wilful and obscene exposure in 1977 and indecent assault in 1994 and 1995. These offences are all disqualifying offences under Schedule 2.1(1)(e) of the Act. As required by section 18(1)(a) of the Act, the respondent refused the applicant’s request for a WWCC clearance.

4. On 16 November 2015 the applicant lodged an application for an enabling order under section 28 of the Act with the Tribunal declaring that he is not to be treated as a disqualified person. The applicant stated he wished to obtain a WWCC clearance to allow him to expand his volunteering opportunities and seek employment at hospitals and at a charity organisation.

5. On 12 October 2016 the Tribunal dismissed the application for an enabling order lodged by the applicant on 16 November 2015.

6. On 4 May 2022 the applicant, who is now 65 years old, applied again to the respondent for a WWCC clearance.

7. On 29 June 2022 the respondent refused the applicant’s application, as required by section 18(1)(a) of the Act.

8. On 27 July 2022 the applicant filed an application with the Tribunal for administrative review of the respondent’s decision to refuse the application for a WWCC clearance. The application was filed 28 days after the applicant became entitled to make an application for an enabling order and therefore within the time allowed under the Civil and Administrative Tribunal Rules 2014.

9. On 12 August 2022 the Tribunal made an order that the application was to be treated as a general application for an enabling order pursuant to section 28 of the Act.

The Legislative Scheme

10. The Act makes provision for the regulation of those persons who engage in or continue to engage in ‘child related work’. The objects of the Act are to protect children:

1. by not permitting certain persons to engage in child-related work; and

2. by requiring persons engaged in child related work to have working with children check clearances.

11. Section 4 of the Act provides that the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration’ in the operation of the Act.

12. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children. ‘Children’ is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word ‘child’ has the same meaning.

13. Subsection 8(1) of the Act prohibits a person from engaging in ‘child related work’ unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children’s Guardian for the relevant WWCC clearance.

14. Subsection 9(1) of the Act contains a similar prohibition on an employer employing or continuing to employ a person in child-related work who does not hold, or have a current application for, a relevant WWCC clearance.

15. Child-related work is broadly defined in sections 6 and 7of the Act. It includes paid and unpaid child-related work.

16. Applications for a WWCC clearance are made to the respondent under section 13 of the Act. Section 18 sets out the powers of the respondent in regard to determining any application that is made. As we have noted, the respondent refused the applicant’s application, as is required under subsection 18(1) of the Act, because he is a disqualified person having been convicted of a Schedule 2 disqualifying offence.

17. Subsection 28(1) of the Act gives the Tribunal a discretion, on the application of a disqualified person, to make an enabling order declaring the person not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence or offences.

18. Subsection 28(7) provides that where an application for an enabling order is sought:

“…it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children”.

In the application before us, therefore, the onus is on the applicant to rebut this statutory presumption that he poses a risk to the safety of children.

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

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

20. The Tribunal has adopted a similar meaning to “risk”, as set out by Young CJ above, where it appears in the current Act.

21. Subsection 28(8) provides that an enabling order cannot be made subject to conditions. That is, if an enabling order is made and a WWCC clearance is granted this clears the person to work in all forms of child-related work for five years unless suspended or cancelled by the respondent prior thereto.

The written evidence relied upon

22. The applicant filed submissions on 9 June 2023 and 20 October 2023 and relied upon the following documentary material:

1. Application for review filed 27 July 2022;

2. Bundle of documents filed 28 November 2022;

3. Bundle of documents filed 9 June 2023;

4. Letter from Mr Steve Bicknell, registered psychologist, dated 18 October 2023 filed 19 October 2023;

5. Statutory declaration of the applicant and certificate of participation filed 20 October 2023; and

6. Report of Dr Thomas Dornan, registered psychologist, dated 22 October 2022, amended version handed up at hearing on 18 December 2023.

23. The respondent filed submissions on 7 May 2021 and relied upon the following documentary material:

1. Bundle of documents filed on 1 November 2022; and

2. Supplementary bundle of documents filed on 12 July 2023.

The applicant’s criminal history and behaviours of concern

24. The applicant has been convicted of three disqualifying offences:

1. In 1977 he was convicted of indecent exposure and one count of assaulting a female. The applicant masturbated on a train in front of a 16 year old female and ejaculated on her. He was placed on a 12 month recognisance.

2. In 1994 he was convicted of indecent assault of his former partner. The applicant grabbed her around the throat in public, threatened her and squeezed her vaginal area. He received a community service order.

3. In 1995 he was convicted of indecent assault for masturbating in front of his female flatmate. He was sentenced to 6 months imprisonment.   

25. In addition to the disqualifying offences, between 1977 and 1990 the applicant had multiple convictions for wilful and obscene exposure, including for showing pornographic photos to a 15 year old girl. In 1992 he punched his ex-girlfriend to the head causing her to be knocked to the ground. He was sentenced to a personal recognisance of $500 to be of good behaviour for two years.

26. It is alleged that the applicant sexually assaulted a five year old girl in 1977. He has always denied this assault and the charge was dismissed.

27. In 1996 the applicant was charged with two counts of assault occasioning actual bodily harm (AOABH); common assault; kidnapping; aggravated sexual assault; and sexual assault for conduct he allegedly committed against his then girlfriend. The Director of Public Prosecutions only proceeded with the two counts of AOABH and the arresting officer was subsequently gaoled for four years for accepting bribes from other corrupt police officers. The applicant was convicted of the two counts of AOABH.

28. Between 2013 and 2014 the applicant was the subject of two informal complaints relating to personal advances made while volunteering at a charity organisation and was counselled by a supervisor.

The applicant’s oral evidence

29. The applicant gave oral evidence and was subject to cross examination. He told the Tribunal that he has volunteered at the charity organisation for over 20 years and that he was ‘pretty messed up as a kid’. He had to ‘learn to feel again’ after having ‘desensitised himself’ as a kid.

30. He was ‘really devastated’ when his previous application for an enabling order was refused but said that ‘my program teaches me what to do next’ and that he did not revert to using drugs or alcohol. He continues to attend Alcoholics Anonymous (AA) meetings and volunteers at an AA office where he answers phones and sells literature. He receives support from the church he has attended for 25 years and prays every day.

31. In relation to the offences he committed, the applicant told us that he ‘feels so low he could float under that door’ and that ‘living with my guilt is worse than being in jail’. At the time of, and after, the offences he was too ‘numbed up’ to have a conscience, would now ‘take it all back if I could’, hates himself and was previously suicidal. He is ‘dreadfully ashamed’ and tries to demonstrate that he regrets everything he did. He ‘knows that God has forgiven’ him and, as a result of the work he has done with AA, ‘can honestly say there are no skeletons in the closet’.

32. The applicant does not know when he was diagnosed with foetal alcohol syndrome disorder (FASD) but his mother was a chronic alcoholic who lived on a park bench and died of pneumonia. He denied having memory problems but acknowledged having learning difficulties and being slow to process information in certain situations which limits the jobs he can do.

33. The applicant acknowledged the offences outlined above and stated that his ‘behaviour was more than atrocious’. When the 1994 and 1995 offences took place, he had not been sober very long (about two years), was very ‘raw’ and ‘couldn’t even sit still’. He asserted that: ‘It’s totally different now from back then’. He committed the offences because of ‘selfish behaviour’ and because he was ‘screwed up and when you take away the alcohol you are still left with the fruit cake and have to deal with that’. AA has ‘stripped me down and built me again. If you don’t deal with the fruit cake, it’s just a dry drunk acting out’. He continued to be ‘very unstable’ for some time after he was sober but believes this changed about 20 years ago. He lost his licence for speeding about 18 years ago but has had no other offences since then.

34. The applicant told the Tribunal that he ‘came from the human scrapheap’ and is ‘trying to be a decent human being’. He has not consumed any alcohol since 1997 and no longer has any cravings. He ceased smoking cigarettes about 20 years ago. He manages challenges by practising what AA has taught him; ringing support persons; attending AA meetings; praying; meditating; ‘taking one day at a time’; and, since 2019, seeing a trauma counsellor, Mr Steve Bicknell. He cannot imagine ever wanting to consume alcohol again and does not take any medications. In addition to AA and his church, he has supports in his local community.

35. In relation to the 2013/2014 complaint at the charity organisation, the applicant gave evidence that somebody spoke to him about the way he was interacting with volunteers and that he was ‘maybe too friendly’ which ‘could be taken the wrong way’. He is now more aware of his behaviour and its potential impact on others.

36. The applicant told the Tribunal that he now has ‘a beautiful lady’ who is the ‘love of (his) life’ and whom he ‘respects a lot’. There have been difficulties with his partner’s strict Catholic family who he asserted are very controlling of her behaviour and want her to marry someone from their culture. The relationship has been on and off for the past seven years, but they are planning to get married in 2024. He was approached by his partner when they were both attending a TAFE course. He was previously ‘very possessive’ because ‘in the street world you had to fight for your lady’ but has ‘learned how to have appropriate relationships’. He is now more mature and realises he cannot control his partner, who is aware of his criminal history. She accepts that it was a long time ago and that he is now a different person.

37. The applicant previously engaged in sexual intercourse with his partner at her request but has ceased having a sexual relationship with her until they are married because ‘I want to do something right in my life and show more respect. I don’t know whether that’s old-fashioned.’

38. He has ‘made amends’ with the mother of his two children from a relationship when he was very young and is now in contact with his daughter, who reached out to him and has visited him in Sydney with her husband.

39. The applicant stated that he previously acted inappropriately on impulses because he did not consider the consequences or the impact on others. He denied having such impulses any longer.

40. The applicant had a range of jobs before being injured in a motor vehicle accident when he was about 32 years old. He has been on a disability support pension since then. He has contact with children through his volunteer work at AA and has been left alone with children when, for example, their mothers have gone to the bathroom. He has also taken the children of a friend to the zoo.

41. The applicant recently ceased one of his voluntary activities at the charity organisation because of difficulties with another volunteer who he believes was ‘trying to intimidate and humiliate’ him. He spoke to people at the charity organisation about it and understands that he is not the only person who has had difficulties with this person but decided it was better to ‘back off’ and ‘put my boundaries in place’.

42. He wants a WWCC clearance ‘to show that I am a safe person to be around children and have the chance to show that people can change’. His partner is working and he also wants to be a ‘contributing member of society’. He would like employment as a ‘counsellor, handyman or cleaner - whatever I can get’ and has been informed by the charity organisation that he needs a WWCC clearance to work there as a volunteer.

43. The applicant told us that he was abused by adults when he was in foster care and that ‘child sexual abuse is disgusting’. He now has a ‘finely tuned conscience’ and no longer has impulses such as exposing himself in public.

Psychological assessment report and oral evidence of Dr Thomas Dornan

44. On 18 December 2023 an updated report dated 15 November 2022 prepared by Dr Thomas Dornan, registered psychologist, was handed up during the hearing and Dr Dornan gave evidence by videoconference.

45. Dr Dornan outlined his qualifications and experience and stated that he used a three-pronged risk assessment approach involving actuarial or static measures (historical risk factors that do not change); dynamic factors (potentially changeable factors that are amendable to intervention to reduce risk); and protective factors that assist the individual to not reoffend.

46. Dr Dornan told the Tribunal that the previous assessment conducted by Dr Emma Collins prior to the previous Tribunal hearing was based on assessment tools that have now been replaced with newer versions.

47. In his report Dr Dornan states that in relation to static measures:

[The applicant’s] result on the Static-99R places him in Level IVb – Well Above Average Risk category.

…

I also note that, as with Dr Collins (sic) opinion, [the applicant’s] risk is lower than the Level IVb – Well Above Average Risk category provided. This would be as a function (sic) his age, and a lack of further convictions, which serve to positively affect his overall level of risk.

48. In relation to stable dynamic risk factors, Dr Dornan states that:

[The applicant] scored positively on all factors on the STABLE-2007, with a score of 3, placing him in the LOW range. Combining his STATIC-99r score and his STABLE-2007 score, [the applicant’s] combined score would fall within the Level III – Average Risk range. The score is suggestive of someone for whom the impact of intervention can meaningfully reduce offending and that for whom risk will decline over time.

Applying this score, to predict a decline in Risk Level based on Static-99r Score and Years Sexual Offence Free in the community, [the applicant’s] overall risk would reduce to Level II – Below Average Risk.

49. Dr Dornan reported that he used the SAPROF-SO (Structured Assessment of Protective Factors for violence risk – Sexual Offence Version) to ‘systematically evaluate the characteristics of a person and their environment that reduce the risk of future sexually abusive behaviour’. He states that:

[The applicant] receives the full protective benefit from having positive internal capacity, demonstrating: positive empathy and coping skills, positive self-control and current prosocial sexual self-regulation. Partial benefit is afforded to [the applicant] as a result of poor cognitive functioning and a poorly developed adaptive schema as a consequence of his Intellectual Disability and the presence of Neurodevelopmental Disorder with Prenatal Alcohol Exposure (ND-PAE). No benefit is afforded to [the applicant] for his insecure attachment in childhood.

[The applicant] receives full protective benefit from a current prosocial identity, endorsing prosocial sexual identity and interests; as well as a positive attitude towards rules and regulations.

Full protective benefit is also provided to [the applicant] in regard to prosocial connections, as he: has engaged in regular employment since early adulthood; a strong prosocial network, and positive connections to adults. Partial protective benefits are afforded to [the applicant] as a consequence of the instability of his current intimate relationship.

Full protective benefits are also provided for [the applicant], due to his current stability in accommodation and finances.

50. In summary in his report, Dr Dornan states that:

Taking into account the aforementioned risk and protective factors, it is my assessment that [the applicant] currently poses a below average risk of sexual recidivism. [The applicant] presents with few risk factors specifically related to sexual risk, and many salient protective factors. I note that a return to substance use for [the applicant], would elevate his risk rating, which is consistent with the opinion provided by Dr Collins in her report.

However, I also note that [the applicant] has been abstinent for 27 years and has developed appropriate coping strategies to manage his risk of relapse. He has described periods of elevated stress, which he has managed appropriately with strong and structured support mechanisms. Whilst the risk of relapse is always a possibility for any recovering addict, the likelihood of his relapse remains low.

51. In oral evidence Dr Dornan noted that the applicant is ‘socially and intellectually unsophisticated’ but is aware of his deficits and has put in place coping strategies and developed appropriate social boundaries and improved social interactions. He has worked hard to put measures in place.

52. Dr Dornan told the Tribunal that ‘the applicant’s level of risk is now comparable with that of an average person in the community’. The applicant’s age is the greatest moderating factor, together with him not having offended for 28 years. The applicant’s drug and alcohol use were previously factors but he has worked hard with his current psychologist and has dealt with several adversities, including having his previous application to the Tribunal rejected, without relapsing. Dr Dornan stated that there is no evidence that, even if the applicant relapsed, he would offend against children. The applicant is of relatively low social and intellectual functioning and may have engaged in ‘poorly thought-out behaviour’ when he approached volunteers at the charity organisation. This does not impact his risk to children, and he sought out guidance from his psychologist and fellowship.

53. Dr Dornan stated that the Static 99R tool is the current ‘gold standard’. Its purpose is to estimate re-offending in the five years after the index offence. He confirmed that the applicant was assessed as falling into the ‘well above average’ risk category, and that, based on that assessment the applicant is seven times more likely than the average offender to re-offend. Dr Dornan noted, however, that the applicant’s age is a moderating factor and that while the estimated rate of recidivism would have been correct for five years post-conviction, the applicant has now been conviction free for over 20 years. The risk of re-offending decreases over time because most re-offending happens quite quickly.

54. Dynamic factors that can be targeted for change are favourable to the applicant. In relation to the applicant’s ‘employment’, Dr Dornan noted that this is a protective factor and a good indicator, irrespective of whether the employment is paid or voluntary.

55. If the applicant was unable to meet his daily living expenses, Dr Dornan stated that it would not necessarily increase his risk of reoffending because such stability is a protective factor, nor a risk factor.

56. Dr Dornan confirmed that he independently diagnosed the applicant with FASD on the basis of his conversation with his regular psychologist and his self-reported information.

57. Dr Dornan gave evidence that if the applicant was to return to drug and alcohol use, it would not necessarily increase his risk of re-offending because he has several other protective factors in place. Dr Dornan reiterated his view that the level of risk of the applicant offending is comparable with any other person in the community.

58. Dr Dornan confirmed that in his opinion, based upon the tests administered and his clinical judgment, the risk of the applicant re-offending is low and there is no indication that children would be at risk.

Section 30 (1) factors

59. 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. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.

60. The Tribunal must also satisfy itself in relation to the tests set out in section 30(1A) of the Act.

61. The evidence is set out below under subheadings that refer to the section 30(1) factors and section 30(1A) tests set out in the Act.

(a) The seriousness of the offences

62. The applicant has three disqualifying convictions under section 61L of the Crimes Act 1990:

1. On 21 November 1977 the applicant was convicted for masturbating in public on a train and ejaculating on a 16 year old female. He was placed on a 12 month recognisance.

2. On 25 March 1994 the applicant was convicted for physically assaulting his ex-partner in public by grabbing her, threatening her and squeezing her vaginal area. He received a community service order.

3. On 25 May 1995 the applicant was sentenced to six months’ imprisonment for masturbating in front of his female flatmate.

63. The applicant accepts that the offence of indecent assault is serious but submits that his convictions are not at the high end of the scale of seriousness having regard to the circumstances of the offences and the penalties involved.

64. The applicant has consistently stated that he was masturbating on the train prior to the victim entering the carriage and that he did not intend to ejaculate on her. In relation to the 1994 offence, the applicant argues that he grabbed the victim over her jeans and was not sentenced to imprisonment. In relation to the third offence, he asserts that he was not charged or convicted of any act of violence.

65. The respondent submits that the applicant’s 1997 offences, (when he was convicted of two offences of AOABH) including those that did not result in conviction, are also serious because they involved sexual violence towards a domestic partner who was prevented from leaving for a period of time. The respondent argues that this cannot be attributed to drug or alcohol misuse because the applicant asserts he had been sober for at least one year when these offences took place.

66. The applicant submitted that the Tribunal should not give much weight to the 1997 matters because it is very difficult for the applicant to disprove them, the jury was not able to reach a verdict in relation to the charges that did not result in convictions, the applicant has always denied them and the arresting officer was later convicted of corruption. The applicant also submitted that these matters occurred a long time ago and did not relate to children. In relation to the assertion that these offences can not be attributed to drug and alcohol misuse, the applicant told us that he continued to be ‘very unstable’ for some time after he became sober but that this changed approximately 20 years ago.

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

67. The most recent disqualifying offence took place in February 1995 which is more than 28 years ago. The applicant was convicted of two offences of AOABH in 1997 against his then girlfriend.

68. There is no evidence the applicant has committed any further offences since then. He has been sober for almost 30 years, is a regular attendee at AA and his church, and has been a volunteer with AA and the charity organisation for many years. He has undertaken studies in language, literacy, numeracy and community services and since 2019 has received regular trauma counselling related to his childhood abuse.

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

69. The applicant was 19 years of age at the time of the first disqualifying offence; 35 years of age at the time of the second offence and 36 years of age at the time of the last offence.

(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

70. The victim of the first disqualifying offence was 16 years old and the applicant accepts that she was vulnerable due to her age but notes that he was only 19 years old when the offence took place.

71. The victim of the second disqualifying offence was 27 years old. The applicant accepts that she was vulnerable because she was his domestic partner at the time.

72. The victim of the third disqualifying offence was 19 years old. She was vulnerable due to being the victim’s flatmate at the time.

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

73. The victim of the first offence was two or three years younger than the applicant and was a stranger.

74. The victim of the second offence was eight years younger than the applicant and was his former girlfriend.

75. The victim of the third disqualifying offence was 17 years younger than the applicant and was his flatmate.

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

76. Only the victim of the first offence was a child. The applicant accepts that he could reasonably have known that she was a child.

(g) The person’s present age

77. The applicant is now 65 years of age.

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

78. The applicant’s criminal history includes multiple convictions for other sexual offences including exposing his penis; masturbating in public; and showing pornographic material to a 15 year old girl. In 1998 he was convicted of two offences of AOABH.

79. There is no evidence that the applicant has committed any offences since then and it is not disputed that he has made great effort to improve his behaviour.

80. He has been abstinent from alcohol for almost 30 years; adheres strongly to the principles of AA where he has mentors and participates regularly in meetings; is supported by his church where he is an active participant; and has been a long-term volunteer of the charity organisation where he also receives support.

81. Since 2019 he has attended regular counselling sessions with Mr Steve Bicknell, psychologist. He has also sought to develop his employment and community service skills by attending various courses at TAFE and other organisations.

82. There was evidence before the Tribunal that the applicant was the subject of two informal complaints raised by fellow volunteers at the charity organisation in 2013 and 2014. These related to him making ‘personal advances’. The applicant submits that no weight should be given to these complaints as they were resolved to the satisfaction of all, presented the applicant with a learning opportunity, and did not relate to children.

83. The respondent argues that the Tribunal cannot be confident that the applicant has changed his behaviour because he did not think he had done anything out of the ordinary although conceded he may have been ‘too friendly’. The respondent argued that the applicant did not take sufficient steps to understand what he had done wrong which is of concern.

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

84. The applicant argues that the evidence from the psychologists who have assessed him overall indicates that his risk of reoffending is low. In relation to the specific concerns raised by Dr Collins and the Tribunal in 2016, the applicant submits that since 2019 he has attended regular counselling sessions to deal with his past trauma. As noted in the report of Dr Dornan, the applicant states he has a reducing sex drive, masturbates infrequently and the content of his sexual fantasies relate to women in the 40 to 60 year old age group. The applicant submits that Dr Dornan considers he demonstrates a reasonable understanding of consent and sexual boundaries.

85. The applicant acknowledges the assessments of Dr Collins and Dr Dornan that his risk of reoffending would elevate if he resumed consuming alcohol or his supports broke down. He notes that he has been sober for almost 30 years.

86. The applicant argues that his risk of relapse from sobriety is low. He has developed appropriate coping strategies and has a range of structured supports including AA, the charitable organisation, his church and regular counselling sessions with Mr Bicknell who reports in his letter dated 18 October 2023 that the applicant is a ‘willing, cooperative and happy participant, and has stated his intention to continue therapy’. The applicant argues that there is no evidence that the applicant has ever preyed on children and that at the time of the only offence involving a child, the applicant was himself only 19 years old.

87. The applicant submitted that he has not relapsed and resumed drinking alcohol despite dealing with adversities such as not previously being granted a clearance by the Tribunal and relationship issues. He argued that his ‘scaffolding’ has remained firmly in place.

88. The respondent submits that the likelihood of repetition of the disqualifying offences is ‘finely balanced’ because the applicant has a long history of disinhibited violent and sexual offending, often associated with his use of alcohol and illicit drugs. The respondent submits that in both 2016 and 2022 expert psychologists stated that the applicant’s static risk factors place him in the ‘high’ or ‘well above average’ risk category for further sexual offences and that these factors are unlikely to change in response to treatment or supervision.

89. The respondent submits that because of his neurocognitive deficits the applicant is likely to suffer from lifelong propensity for boundary violations including sexually inappropriate behaviour and that his diagnoses deprive him of the full benefit of empirically derived protective factors.

90. The respondent acknowledges that the applicant has not been convicted of any criminal offences since the 1996/1997 AOABH convictions. The respondent submits that the applicant’s risk of reoffending is associated with whether he relapses into alcohol and drug misuse. The respondent acknowledges that the applicant’s risk of relapsing has decreased over time but submits that this does not mean he does not pose a risk to children.

(i1) Any order of a court or tribunal that is in force in relation to the person

91. The parties agreed that there are no orders of any court or tribunal in force in relation to the applicant.

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

92. The applicant submitted that he has repeatedly expressed great remorse for his actions and the harm he caused to his victims and that he has taken positive steps to address his behaviour.

93. The applicant provided written character references from the pastors of his local church, members of AA and senior staff of the Charity Organisation.

(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A of the Act

94. There is no such information.

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

95. The Children’s Guardian submitted that the applicant might engage in non-criminal conduct affecting the safety of children in the context of child-related employment because of his history of sexual misconduct.

96. The respondent also submitted that the complaints about the applicant’s behaviour while volunteering, while not criminal in nature, are of concern and that he may again make misguided and inappropriate advances to others in the presence of children which may cause harm to those children.

97. The applicant submitted that the Tribunal should not give any adverse weight to:

1. the allegation that in 1977 he sexually assaulted a five year old girl, a charge that was ultimately dismissed;

2. the allegation that in 1997 he sexually assaulted and detained his then girlfriend, charges the Director of Public Prosecutions dropped and in relation to which the arresting officer was gaoled in relation to his integrity; or

3. the informal complaints made by two volunteers towards whom the applicant had made advances because the applicant was counselled and the concerns were addressed.

Section 30(1A) tests

98. The applicant submits that the applicant does not pose a real and appreciable risk to children and that an enabling order under s 28(1) of the Act should be made such that the applicant is no longer treated by the respondent as a disqualified person in respect of his application for a WWCC clearance.

99. The applicant submits that a reasonable person would not adopt an unduly narrow approach to whether to permit him to have unsupervised access to children and would give heavy weight to his history of sobriety and behaviour and ‘not write off his prospect of rehabilitation’.

100. The applicant submits that it is in the public interest for him to be given a clearance because he would like to obtain paid work and/or continue to volunteer with people who have experienced homelessness and drug and alcohol problems. He argues there is greater scope for this if he has a WWCC clearance and that it is in the public interest for him to become financially independent and not supported by a disability support pension.

101. The respondent submitted that a reasonable person would not allow his or her child to have direct contact with the applicant that was not directly supervised by another person.

102. The respondent argues that it is not in the public interest for the applicant to be granted an enabling order.

Consideration

103. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive. The Act requires that the protection of children, particularly from child abuse, is the paramount consideration of the Tribunal.

104. As the Tribunal (differently constituted) concluded in 2016, this is a difficult case involving a man with a lengthy and serious criminal record including sexual offences towards women with whom he has been in a relationship and strangers. His history involves multiple convictions for indecency, including ejaculating on a 16 year old girl in a train carriage.

105. It is undisputed, however, that the applicant has made great effort to address his past offensive behaviour, much of which was associated with his substance abuse. He has been sober for almost 30 years; he continues to be committed to the AA program; and he has a diverse range of support networks in the community, including in his local neighbourhood and at the charity organisation and his church.

106. In 2016 the Tribunal expressed concern that the applicant’s reformed behaviour was contingent upon his continued informal support and supervision at AA, his church and the charity organisation, and that if he lost those supports and returned to substance abuse his risk of reoffending would increase. The Tribunal accepted that while there was no evidence that the applicant had targeted children in his sexual offending, his offending was indiscriminate because it was towards both strangers and women known to him and included a 16 year old girl. The Tribunal determined in 2016 that the applicant had not displaced the presumption that he poses a risk to the safety of children.

103. The applicant expressed great remorse for his past behaviour during the hearing and was at times visibly upset. We accepted this as genuine.

104. There are some significant developments since the previous decision of the Tribunal. The applicant has, since 2019, participated in regular counselling sessions with a psychologist to address issues related to his traumatic childhood. He has stated that he intends to continue this counselling. This is a positive step which has added to the applicant’s supports.

105. Since the last hearing the applicant has continued to develop a relationship with a woman he met at TAFE and they are planning to marry in 2024. We accepted his evidence that she is now fully cognisant of his past history of offending and that the relationship has at times presented significant challenges because of her family’s disapproval of her marrying a man who does not come from the same cultural background. This has not, however, resulted in the applicant resuming drinking alcohol or using illicit substances and he has sought appropriate supports within his networks to manage this and other challenges, including not being granted a clearance by the Tribunal in 2016. A further seven years has passed during which there is no evidence of the applicant committing any offences or there being allegations of behaviours of concern.

106. We also accepted the applicant’s evidence that he has been left unsupervised with children at AA and has taken a friend’s children to the zoo without any other adults accompanying them. There have been no reports of concern relating to these incidents.

107. We placed no weight on the ‘informal concerns’ raised at the charity organisation. There is very little evidence about what happened, no formal complaint was made and children were not involved.

108. We gave minimal weight to the allegations that the applicant sexually assaulted and detained his girlfriend in 1997. The Director of Public Prosecutions did not proceed with the charges; the applicant has consistently denied the sexual assault or detention ever took place and no evidence to rebut this was introduced by the respondent; and the arresting officer was later convicted of dishonesty and other offences.

109. We placed significant weight on the evidence of Dr Dornan that, based upon the tests administered and his clinical judgment, the risk of the applicant re-offending is low and there is no indication that children would be at risk.

110. The offences committed by the applicant were serious, but we accept that none of his offences deliberately targeted children, and that he was himself only 19 years old at the time of the offence that directly involved a child.

111. Subsection 28(5) of the Act provides that the applicant is required to fully disclose to the Tribunal any matters relevant to his application. The respondent did not question the honesty of the applicant but submitted that he was not ‘entirely reliable’ as a witness, based on the need for the correction of his sworn evidence in relation to the 1997 convictions. We accepted the applicant’s evidence that he had not previously been aware that he was convicted of those offences. There is no evidence that the applicant has not willingly disclosed all relevant matters.

112. We are satisfied that a reasonable person with knowledge of the particulars of the offences committed by the applicant and the surrounding facts would allow his or her children to have direct contact with the applicant in situations where he is not directly supervised by another person while engaged in child-related work (the test under section (30)(1A)(a)).

113. We are also satisfied that it is in the public interest for the Tribunal to grant an enabling order (the test under section (30)(1A)(b)).

114. While we accept that the applicant’s behaviour was serious and harmful to his victims, we are satisfied that the evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the applicant. To continue to refuse him a WWCC clearance would arguably be punitive.

115. Having regard to the abovementioned factors and the material before us, in our view the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children and it is appropriate to make the orders sought.

Order

The order of the Tribunal is that:

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

1. Indecent assault, of which the applicant was convicted on 21 November 1977;

2. Indecent assault, of which the applicant was convicted on 25 March 1994;

3. Indecent assault, of which the applicant was convicted on 25 May 1995.

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

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

Registrar

Amendments

01 February 2024 - Cover page - Order 1a, 1b and 1c added.

Orders on the very last page - Order 1a, 1b and 1c added.

01 February 2024 - Orders on last page - Amendment of the numbering. From 1(1), 1(2), 1(3) changed to 1(a), 1(b) and 1(c).

Decision last updated: 01 February 2024