CGS v Children's Guardian

[2016] NSWCATAD 228

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CGS v Children’s Guardian [2016] NSWCATAD 228
Hearing dates:	11 May 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member R Royer, General Member
Decision:	The applicant’s application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of three counts of indecent assault – whether applicant has discharged onus to prove he does not pose a risk to the safety of children – onus not discharged – definition of child-related work.
Legislation Cited:	Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Crimes Act 1900 (NSW)
Cases Cited:	BGX v Children's Guardian [2014] NSWCATAD 173 BKE v Office of Children’s Guardian [2015] NSWSC 523 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSW 111 Commission for Children and Young People v V [2002] NSW SC 949 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CGS (Applicant) Office of the Children’s Guardian (Respondent)
Representation:	Counsel: H Jewell (Applicant) I Fraser (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	1510725
Publication restriction:	The 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 a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (‘the Act’) and has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a ‘disqualified person’ for the purpose of the Act. The order is known as an ‘enabling order’ and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s6 of the Act. No conditions can be placed on a working with children check clearance. The Children’s Guardian, who is the respondent in this matter, opposes the application for an enabling order.

2. The offences which bring the applicant within subsection 18(1) of the Act are three offences of indecent assault, the first having occurred in 1977, the second in 1994 and the third in 1995.

3. An application for an enabling order is required to be made within 28 days of the applicant being entitled to apply for such an order: rule 23(3) of the Civil and Administrative Tribunal Rules 2014. The applicant became entitled to apply for an enabling order on being declared a disqualified person on 4 November 2015. His application for review to this Tribunal was filed on 16 November 2015 and is accordingly within time. On this basis, the Tribunal has jurisdiction to hear and determine the application.

4. The issue to be determined by the Tribunal is whether the applicant poses a risk to the safety of children. In the case of an application for an enabling order, the Tribunal is to presume that, unless the applicant proves to the contrary, he does pose such a risk. (section 7 of the Act)

5. In considering this question, guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSW SC 949 at [42] (as cited with approval in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [26]):

What one is looking for is whether, in all of 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 children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of children.’

6. The test applied in determining whether the applicant poses a risk to the safety of children is that of "a real and appreciable risk": see BGX v Children's Guardian [2014] NSWCATAD 173 and BYR v Children's Guardian [2013] NSWADT 310, at [38].

7. The safety, welfare and well-being of children and, in particular, protecting them from child abuse is the overriding consideration under the Act and the Tribunal’s jurisdiction under section 28 of the Child Protection (Working with Children) Act 2012 remains protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSW 111 per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to children.

8. Due to the sensitive nature of these proceedings, an order was made under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 that the names of the applicant and his family as well as the names of the victims of the disqualifying offences are not to be published without the leave of the Tribunal. To give effect to this order, the pseudonym CGS has been used for the applicant's name.

Child-related work

9. The object of the Act is to protect children by requiring persons engaged in child-related work to have working with children check clearances. (s3 of the Act)

10. Section 8(1) of the Act prohibits a person from engaging in child-related work unless the person holds the relevant working with children check clearance or there is a current application by the person for a check clearance.

11. The definition of “child-related work” is set out in section 6 of the Act. In summary, a worker is engaged in child-related work if he or she is engaged in work that involves direct contact (that is physical or face to face contact) with children where the work is work for, or in connection with:

• child development;

• child protection;

• children’s health services;

• clubs or other bodies providing services for children;

• disability services;

• early education and child care;

• education;

• entertainment for children (sporting, cultural or other entertainment venues used primarily by children and entertainment services for children);

• justice services;

• religious services (which includes any religious organisation)

• residential services (namely refuges used for children, long term stays for children, boarding houses or other residential services for children and overnight camps for children)

• transport services for children; and

• any other services prescribed by the regulations.

12. At the time of writing this decision, work as a youth worker and as a school cleaner were also defined as child-related work in the Child Protection (Working with Children) Regulation 2013 (‘the Regulations’)’. The Regulations further prescribe the role of each member of the governing body of a designated agency, a registered agency and a registered agency to be a child-related role. Similarly the principal officer of a registered agency, who has the overall supervision of the agency’s arrangements for providing voluntary out-of-home care, is defined as a child-related role.

13. Under section 7 of the Act, a worker may also taken to be engaged in child-related work where his or her work involves access to confidential records or information about children.

14. In an application such as this, however, it is not the role of the Tribunal to examine whether an applicant is, in fact, engaging in child-related work. It may, however, be useful for an organisation for which an applicant works, either on a paid or voluntary basis, to consider whether an applicant is engaged in child-related work. If he or she is not engaged in such work, the Act does not require him or her to obtain a working with children check clearance.

CGS criminal history and evidence

15. In 1977, the applicant was convicted of wilful and obscene exposure. In 1978, he was again convicted of wilful and obscene exposure in addition to indecent exposure and one count of assault female. A charge of indecent assault on a five-year-old girl was dismissed in the Children’s Court in 1976. In 1989 and 1990, the applicant received two further convictions for wilful and obscene exposure. In 1993, he was convicted of one count of assault and in 1994, he was convicted of the indecent assault of his former partner. In 1996, he was sentenced to six months imprisonment for a further indecent assault. At the time of the offence, the applicant had been attending Alcoholics Anonymous. In 1998, the applicant was sentenced to a fixed term of imprisonment of 21 months following his conviction for assault occasioning actual bodily harm. The applicant has had no further convictions since then.

16. In a report prepared for the applicant in 1990, the clinical psychologist, Tom Jones, describes him as a ‘secondary exhibitionist: that is a person who does not normally exhibit himself but may do so during periods of loneliness and depression.’ According to Mr Jones’ report ‘this behaviour is not associated with other disorders such as paedophilia or alcohol or abuse. The natural course of this disorder is that it tends to abate with age.’

17. A probation report prepared for the applicant in 1995 described him as an ‘emotionally deprived person with limited social skills, who has shown substantial improvements over the last two years in the control of his drug and alcohol abuse and in the understanding of his emotions. He has also achieved some stability and demonstrated initiative and motivation in pursuing treatment of his own accord.’

18. In an affidavit prepared for these proceedings, the applicant detailed his recovery from drug and alcohol abuse through his engagement in the 12-step program by Alcoholics Anonymous (AA). In his affidavit, he stated that he has abstained from drinking alcohol for 21 years. He continues to attend AA meetings on a regular basis.

19. He started volunteering at a charity organisation (‘the charity organisation’) in 2006. Since being refused a working with children child clearance, he has stopped working as a volunteer at the charity organisation.

20. He has been in a stable relationship since 2013 and states that:

I am deeply horrified for my offending. I see these acts as despicable. At the time, I acted on impulse. I now no longer act on those impulses….Since completing my AA programme, I have not been convicted of any further charges. I am committed to remaining a sober, productive member of society. I am a different person that I was what I was offending…Through my experiences and AA, I have learned ways and tools , other [than] drug and alcohol taking, to deal with stressful situations. I am proud of the good life I now enjoy today and have no intention of returning to drug or alcohol use.

21. He has completed a Certificate III in Community Services Work.

22. The applicant gave oral evidence before the Tribunal. In relation to the charge of indecently assaulting a child, which was dismissed in 1976, the applicant denied that the event had ever taken place.

23. He agreed that when he had been younger, he had acted on his sexual urges and that he had been unable to control them. He told the Tribunal that since then, he has learnt not to be so selfish, to think of other people and to act appropriately. He denied having had any psychological or psychiatric treatment to deal with his sexual urges, instead giving credit to Alcoholics Anonymous (AA), and in particular the 12-step program, for the changes he has made to his life. He described AA as being ‘the backbone to his recovery in a lot of areas.’

24. He emphasised the disgust he felt in relation to his previous offending but is also mindful of the need to forgive himself for his previous behaviour. He told the Tribunal that his way of making amends to the victims was to stay clean and sober and to be a person of God. He confirmed that he had been sober for twenty-one years. He agreed that he had continued to offend in the early years of his sobriety, but explained this as a transitionary phase until he had stabilised.

25. He told the Tribunal that he had been volunteering at the charity organisation for eleven years and had been told by the organisation to apply for a working with children check clearance, even though his regular volunteering work does not involve contact with children. He did note that on one occasion, he had helped distribute presents to the children at the organisation’s Christmas celebration.

26. When asked about two informal concerns raised in 2013 and 2014 that he had made personal advances towards two female volunteers at the charity organisation, he told the Tribunal:

I’m no Casanova, a lot of it is trial and error. You learn: no malice, no harm done. I’m just a male trying to learn how to get closer to a woman. Someone has probably taken offence but there was no harm intended. Generally, I’m very respectful.

27. He agreed that he had hit his previous partner and that he had been convicted of her assault in 1993 and 1994. He told the Tribunal that he had been unable to deal with rejection and the difficulties in his relationship. As a result of his recovery through AA, the applicant told the Tribunal that he has been taught how to cope and ‘is not a monster now.’

Chief Executive Officer of the Charity Organisation

28. The Chief Executive Officer of the Charity Organisation (‘the CEO’) describes the applicant as ‘an engaged, honest, diligent and helpful volunteer.’ According to the CEO, his organisation is ‘diminished by [the applicant’s] absence.’

29. The CEO notes that his organisation has supported the applicant to complete a number of qualifications at TAFE. These qualifications would enable the applicant to undertake paid employment at the charity organisation where he had been volunteering prior to the refusal of his working with children check clearance.

30. In oral evidence before the Tribunal, the CEO explained that his organisation had a youth area that was separated from the general area and that although the organisation could technically care for children over the age of twelve years, the youth area mostly catered to young people in their late teens or early twenties. There is a kindergarten near premises used by the charity organisation but none of the organisation’s volunteers are involved in the kindergarten itself. The applicant volunteered in the reception of the general area and not in the youth area.

31. The CEO agreed that there had been two informal concerns raised in 2013 and 2014 when the applicant had approached two younger female workers for their phone numbers and which had made them uncomfortable. He noted that no formal complaints were ever raised and the issue was one that had required some education of the applicant in recognising boundaries.

32. He agreed that if the applicant were granted a working with children check clearance, he would be eligible to be considered for ‘assisted employment’ in the organisation.

Psychological Risk Assessment Report & oral evidence by Dr Collins

33. In a report prepared by Dr Emma Collins, the applicant provided a personal narrative in which he advised that he currently attends AA meetings around four times a week, more frequently if he is experiencing personal stressors. He told Dr Collins that if he ceased attending AA meetings, he would likely relapse back into using substances.

34. On the basis of the STATIC 99 test, which is a risk assessment tool in relation to sexual offences, Dr Collins assessed the applicant’s risk of re-offending to be moderate. In reaching this conclusion, Dr Collins considered the fact that the applicant had prior non-sexual violence, four or more sexual convictions, four or more sentencing dates, convictions for non-contact offences, unrelated victims and stranger victim. She also took into account the fact that the applicant has not been convicted for two decades and that his increasing age would lower his risk of reoffending.

35. On the basis of the Risk for Sexual Violence Protocol assessment tool, however, Dr Collins found the applicant to pose a low risk of sexual offending. Factors protective against re-offending include the fact that he has been stable for over 20 years and has had no sexual convictions since the mid-1990s; that he has no recent substance abuse history or evidence of psychopathic personality traits or mental disorder; that there is no current evidence of sexual deviance or violent or suicidal ideation; that he has strong supports and is involved in a prosocial relationship and has no problems dealing with stress.

36. Dr Collins did, however, identity the following factors as increasing the applicant’s risk of re-offence:

• multiple and chronic offending history;

• reported limited treatment and the fact that the applicant has often breached various supervisory orders; and

• problems arising from a history of child abuse.

37. She explained the applicant’s offending in terms of:

• his early life events, including the child abuse perpetrated on him;

• his compromised attachment to his primary carers;

• his difficulties in communicating with females and subsequent resort to violence to express his sexual impulses;

• his learning difficulties;

• his opposition and conduct problems;

• an historical lack of problem solving strategies;

• his condoning of sexual violence and indiscriminate sexual offending against females;

• his inability to regulate his sexual desires, manifesting in sexual offending against his former partners and strangers and in displays of exhibitionism. She expressed her concern that he may have used his sexual urges to self-soothe because of his inability to otherwise resolve his feelings.

38. On the basis of her assessment, Dr Collins found, overall, that the applicant presents a low-moderate risk of sexual offending and that there are no current risk factors present, as the applicant’s risk factors are historical.

39. According to Dr Collins:

Should [CGS] return to substance abuse, this will significantly elevate his current risk rating. To this end, if [CGS] remains drug free and stable as he has done in the last two decades, his risk rating falls in the low range. With any instability or return to drug use, it will increase his risk to at least moderate.

40. In oral evidence before the Tribunal, Dr Collins agreed that if the applicant were to return to substance abuse or were to experience a reduction in his social supports, namely AA, his church and his personal relationship, his risk of sexual reoffending would escalate.

41. Dr Collins expressed her concern in relation to the applicant’s history of sexual deviance. She told the Tribunal that in combination with a relapse into substance abuse or a reduction of his social supports, the applicant’s history of sexual pre-occupation, anti- social behaviour and sexual deviancy would be very problematic in terms of his risk of reoffending.

42. When asked what treatment recommendations she would have made for the applicant had he seen her at the time of his offending, Dr Collins told the Tribunal that she would have recommended a referral to a psychiatrist for anti-libidinal medication in addition to monitoring and corrective strategies.

43. Dr Collins applauds the achievements the applicant had made through his commitment to AA, however, she remains of the view that although he has taken responsibility for his offending, it is at a somewhat superficial level.

44. She expressed some concerns about the applicant’s current relationship, particularly given that the applicant’s girlfriend was unaware of his offending behaviour, which, according to Dr Collins, would make her unable to make an informed decision about the relationship. It was possible, Dr Collins told the Tribunal, that the termination of this relationship may lead to instability for the applicant. Whilst she expressed the view that any re-offending by the applicant would more probably involve a partner, she told the Tribunal that it may involve children in some capacity. She agreed that the applicant presents a higher risk than anyone who had never offended at all. She agreed that although there had been a long gap since the applicant had last offended, this did not mean that the applicant would not ever re-offend.

Findings and reasons

45. Subsection 30(1) of the Child Protection (Working with Children) Act 2012 sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application made under s 28(1).

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.

46. Section 61L of the Crimes Act 1900 is the offence of indecent assault. It is a disqualifying offence for the purposes of the Child Protection (Working with Children) Act. The applicant has three separate convictions under s61L of the Crimes Act, the details of which are set out below:

• On 21 November 1977, the applicant was placed on a twelve-month recognisance following his conviction for masturbating in public on a train in front of a 16-year-old girl and then ejaculating on her. The applicant was 19 years old at the time of the offence;

• On 25 March 1994, the applicant received a community service order following his conviction for physically assaulting his ex-partner in public by grabbing her around the throat, threatening her and squeezing her vaginal area;

• On 25 May 1995, the applicant received a sentence of six months imprisonment for masturbating in front of his female flatmate.

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

47. The most recent of the disqualifying offences took place in February 1995, which is now more than 21 years ago. There is no evidence that the applicant has committed any further offences since 1997, when he was convicted of two offences of assault occasioning actual bodily harm against his then girlfriend.

48. It is undisputed that the applicant has taken great steps to improve his life since then, that he has been sober for over twenty years and is a committed member of Alcoholics Anonymous.

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

49. At the time of the first disqualifying offence, the applicant was 19 years old. At the time of the second disqualifying offence he was 35 years old and at the time of the third disqualifying offence he was 36 years old.

(d) the age of the victim and any matters relating to the vulnerability of the victim,

50. The victim of the first disqualifying offence was 16 years old. She was vulnerable due to her age.

51. The victim of the second disqualifying offence was aged 27 years old. The offence was domestic in nature and the victim was vulnerable for this reason.

52. The victim of the third disqualifying offence was aged 19 years and was the applicant’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,

53. The victim of the first disqualifying offence was two years younger than the applicant and was unknown to him.

54. The victim of the second disqualifying offence was eight years younger than the applicant and was the applicant’s former girlfriend.

55. The victim of the third disqualifying offence was seventeen 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,

56. Only the victim of the first disqualifying offence was a child. The applicant could reasonably have known that she was a child.

(g) the person's present age,

57. The applicant is now 58 years old.

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

58. The applicant’s criminal record contains other sexual offences that are not disqualifying offences. They include exposing his penis and masturbating in public. They also include a 1989 conviction for offensive behaviour for showing pornographic photographs to a 15-year-old girl.

59. In 1998, he was convicted of two offences of assault occasioning actual bodily harm.

60. There is no evidence before the Tribunal that he has committed any further offences since then. To the contrary, the evidence is that the applicant has taken great steps to improve himself and his behaviour. Most notable is his abstinence from alcohol for over 20 years and his strong adherence to the principles espoused by the organisation Alcoholics Anonymous. He is supported both by his church, of which he is an active member, and by the CEO of the Charity Organisation where the applicant had been a long-term volunteer prior to the refusal of his working with children check clearance.

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

61. It is undisputed that there is potential for significant impact on children were the disqualifying offences or the exposure offences to be repeated.

62. The Children’s Guardian concedes that the applicant has not repeated any such offences, or indeed committed any offences at all since 1997.

63. In her risk assessment for the applicant, however, Dr Collins assessed the applicant as being in the moderate risk category on the basis of the STATIC-99 assessment tool, with is based on static factors. Using the Risk for Sexual Violence Protocol (RSVP), which assesses both static and dynamic factors, she placed the applicant in the low risk category. As an overall assessment, she placed the applicant in the low to moderate category and agreed that he continues to present a higher risk of re-offending than anyone who has never offended at all.

64. She expressed the view that the applicant’s risk would significantly increase were he to return to substance abuse or if he were to experience a reduction in his social supports. She also expressed concern in relation to the applicant’s history of sexual deviance and his risk of relapse into this behaviour, were he to return to substance abuse or experience a reduction in his social supports.

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

65. The CEO of the charity organisation attended these proceedings to support the applicant’s request for an enabling order. In his evidence, the applicant stated that he did not have contact with children in his role as volunteer at the charity organisation and that, as a volunteer, he was supervised at all times.

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

66. The Children’s Guardian opposes this application.

67. In determining this matter, the Children’s Guardian has asked the Tribunal to take into consideration the following two sets of allegations which did not result in conviction:

• that on 23 March 1977, the applicant sexually assaulted a five-year-old girl;

• that on 16 April 1997, the applicant sexually assaulted his then girlfriend and detained her against her will.

68. For the following reasons, the Tribunal has given no weight to the allegations that in 1977, the applicant sexually assaulted a five-year-old girl:

• the charges were dismissed in court;

• the applicant gave evidence to the Tribunal that the allegations were untrue and the events did not take place. No oral evidence was called by the Children’s Guardian to rebut the applicant’s evidence;

69. For the following reasons, the Tribunal has given no weight to the allegations that the applicant sexually assaulted and detained his former girlfriend in 1997:

• the Director of Public Prosecution made a decision not to proceed with those charges;

• in a lengthy affidavit prepared for these proceedings, the applicant denied either sexually assaulting or detaining his then girlfriend. The Children’s Guardian did not call any witnesses to rebut the applicant’s statement;

• the arresting officer was later subject to an investigation into his probity, was suspended from duty and convicted for dishonesty and drug offences committed in the course of his duty. The Tribunal gives some weight to this in considering the allegations against the applicant, which the applicant believes to have been a malfeasance of office by the arresting officer. No evidence was put before the Tribunal to counter the claims made by the applicant in relation to the arresting officer.

70. The Children’s Guardian has also urged the Tribunal give weight to those concerns raised by two female volunteers at the charity organisation that the applicant had made personal advances towards them. The Children’s Guardian has submitted that the applicant’s advances ‘may be suggestive of an ongoing issue as regards [his] ability to properly manage his sexual behaviour.’

71. The evidence before the Tribunal in relation to this occurrence is limited to the following note by a manager of the charity organisation that

The concerns were raised by volunteers towards whom [the applicant] made personal advances. [The applicant] was counselled about the concerns and corrected his behaviour going forward.

72. The volunteers in question did not provide a statement nor did they provide evidence in these proceedings. There is no evidence before the Tribunal to find, on the basis of these incidences, that the applicant may have difficulty in managing his sexual behaviour.

73. In the Tribunal’s view, it is simply indicative, as confirmed by the CEO of the charity organisation, that the applicant continues to benefit from being taught boundaries in relation to his interactions with other people.

COnclusion

74. This has been a difficult case. The applicant is a man with a lengthy and serious criminal record, which includes sexual offending towards both women with whom he has been in a sexual relationship as well as women unknown to him. His criminal history involves multiple episodes of indecency in a public place, including, on one occasion, ejaculating over a 16-year-old girl in a train carriage. It is a criminal record that is immediately of concern in a forum such as this. Of particular concern are the ‘sexual urges’ that the applicant refers to in explaining his criminal offending.

75. Weighed against this is the clear evidence that the applicant has, over the past 20 years, worked extremely hard to improve himself and to make amends for his past behaviour, much of which was clearly related to his substance abuse. The applicant had given evidence that he has been sober for 21 years and there is nothing before the Tribunal to dispute this. Undisputed, too, is the fact that the applicant has been committed to the AA program, to which he credits his rehabilitation.

76. He comes supported by the CEO of the charity organisation, a man who is extremely well-regarded within the community and who describes the applicant as an asset to the organisation.

77. The applicant has told the Tribunal that he is now a changed man. The evidence before the Tribunal is that in making these charges to his life, he has relied on his close supports and, in his role as a volunteer in the charity organisation, has always been closely supervised. The CEO of the charity organisation has high praise for the applicant whilst acknowledging his need to maintain appropriate boundaries.

78. On the evidence before it, it is the Tribunal’s view that the applicant’s excellent progress is contingent on the retention of the scaffolding of public supports around him. Without these supports, it is the view of Dr Collins that the applicant’s risk of sexual offending would escalate. In Dr Collins’ view, his risk would similarly escalate were he to experience any further substance abuse issues.

79. Whilst the Tribunal is hopeful of the applicant’s continued progression and improvement, the Tribunal finds that his well-being is contingent upon his continued, if informal, supervision and support through AA and his church and his charity organisation. If he loses these supports, however, his risk of returning to substance abuse and to instability escalates, in which case his risk of sexual reoffending would increase. Whilst the Tribunal accepts that there is no evidence that the applicant has ever specifically targeted children in his sexual offending, both strangers and women known to him have been the targets of his sexual impulses, including a 16-year-old girl. He has, therefore, been indiscriminate in his offending.

80. Where an enabling order is sought, the Tribunal is to presume that, unless the applicant proves to the contrary, he poses a risk to the safety of children. In light of the evidence of Dr Collins and the applicant’s poor criminal record which shows a pattern of sexual offending involving victims both known and unknown to him, including a sixteen-year-old girl, the Tribunal is not satisfied that the applicant has displaced the presumption that he poses a risk to the safety of children. For this reason, his application for an enabling order is dismissed.

Does the applicant require a working with children check clearance to continue his supervised volunteer work at the charity organisation?

81. The applicant has sought a working with children check clearance primarily to continue his work as a volunteer at the charity organisation. On the limited evidence before the Tribunal, it would appear that in his (former) capacity as a volunteer for the organisation, the applicant may not have been engaged in child-related work as it is defined in section 6 of the Act. In this case, he would not require a working with children check clearance in order to continue his volunteer work. The charity organisation may wish to obtain some advice in this regard.

ORDERS

The Orders of the Tribunal are as follows:

1. The applicant’s application for an enabling order is dismissed.

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

Registrar

Decision last updated: 12 October 2016