DNQ v Children's Guardian

[2018] NSWCATAD 188

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DNQ v Children's Guardian [2018] NSWCATAD 188
Hearing dates:	10 August 2018
Date of orders:	20 August 2018
Decision date:	20 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	(1)   The application for a stay or interim order filed 8 August 2018 is refused and dismissed. (2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to 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.
Catchwords:	ADMINISTRATIVE LAW-Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- where applicant seeks a stay - where disqualifying offence under s 337(1) (Qld) Criminal Code Act 1899 being an offence of indecent assault – assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children – where stay refused.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children (Criminal Proceedings) Act 1987 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Code Act 1899 (Qld) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth) Interpretation Act 1987 (NSW)
Cases Cited:	1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 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 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 BXJ v Children's Guardian [2016] NSWCATAD 11 BYR v Children’s Guardian [2013] NSWADT 310 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v BQJ [2016] NSWSC 869 Children’s Guardian v CKF [2017] NSWSC 893 CJT v Office of the Children’s Guardian [2016] NSWSC 738 Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 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 CSZ v Children’s Guardian [2017] NSWCATAD 57 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 CZI v Children’s Guardian [2017] NSWCATAD 179 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 M v M [1988] HCA 68; 166 CLR 69 New South Wales Bar Association v Stevens [2003] NSWCA 95 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 R v Commission for Children and Young People [2002] NSWIRComm 101 Re A Solicitor’s Clerk [1957] 1 WLR 1219 Roberts v Balancio (1987) 8 NSWLR 436 Robertson v City of Nunawading [1973] VR 819 Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 Smith v Commissioner of Police [2014] NSWCATAD 184 Tilley v Children’s Guardian [2017] NSWCA 174 Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Procedural and other rulings
Parties:	DNQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel/Advocates: DNQ (Applicant in person) V Hartstein (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00243539
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to 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. This is an application for a stay and an application commenced on 8 August 2018 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The Children’s Guardian informed the applicant, who is referred to as “DNQ” in these proceedings, on 6 August 2018 that due to being convicted of a disqualifying offence as specified in clause 1 (1) (z) of schedule 2 of the Act, being indecent assault contrary to section 337(1) of the Criminal Code Act 1899 (Qld), he was not eligible to be granted a Working with Children Check Clearance. The applicant pleaded guilty to that offence and was sentenced in 1994 to a fine of $400.

2. An order was made at the hearing pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication and disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal. 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. The disclosure of that information is likely to cause distress and further harm to the victim. Because the victim will be identified if the applicant’s name is used, his identity will also be prohibited from publication and disclosure. The interests of justice are better served by the prohibition of that publication and prohibiting disclosure than by promoting the open justice principle. This weighting of the scales in favour of prohibition of publication of identifying information is recognised by the statutory prohibitions in NSW legislation prohibiting disclosure of the identity of children who are involved in an application to the Children’s Court, and the provisions relating to criminal proceedings involving a child victim: see section 105 Children and Young Persons (Care and Protection) Act 1998 (NSW); section 578A of the Crimes Act 1900 (NSW); section 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

3. The applicant was advised that he was a disqualified person on 6 August 2018 and the application for an enabling order under section 28 of the Act was filed within the time permitted within 2 days of the notification.

4. The stay application was heard urgently on 10 August 2018. The applicant was not legally represented. The applicant was given the option of proceeding with the stay application on the current state of the evidence or seeking to make the application at a later point in time. The applicant chose to proceed on the application with the information he had already provided to the Tribunal. At that time a final hearing date was then allocated for 28 September 2018.

5. The applicant stated that he was preparing to go on a holiday and that is why the application for stay was scheduled at his request earlier than the next directions list.

6. The applicant may later be seeking to rely upon expert evidence for the hearing but none was provided on this application.

7. Directions were made for the preparation of the matter for hearing. These orders and directions were made and entered and sent to the parties after the decision in relation to the stay was reserved.

8. It was also organised by the Tribunal for the applicant to consult with the Legal Aid duty solicitor to obtain some preliminary legal advice and to see whether the applicant qualifies for legal aid. This appointment is to occur in early September.

9. The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The applicant wishes to continue work as a bus driver. An enabling order would permit the applicant to work with children in any child-related work in a paid and voluntary capacity even though the applicant may seek the order for a specified purpose.

10. The respondent opposes the stay application.

11. The offence with which the applicant was charged and to which he pleaded guilty occurred in Queensland in 1994, or about 24 to 25 years ago, when the applicant was aged 37 years. The applicant is now aged 62 years. The offence will be later described in more detail under the appropriate subject matter determined by section 30 of the Act.

12. In CZI v Children’s Guardian [2017] NSWCATAD 179 the Tribunal considered the principles governing whether to grant a stay in relation to an application for an enabling order under section 28 of the Act. That is a decision which was provided to the parties at the hearing.

13. Provided that the matters which must be considered in section 30 of the Act are taken into account, the application for an enabling order will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

14. 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.

15. 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.

16. The ultimate conclusion of the Tribunal is that the applicant should not obtain a stay of the refusal to grant a working with children check clearance. The applicant is presumed to pose a real and appreciable risk to the safety of children because of his conviction.

17. The reasons for the refusal of the stay application decision are set out in more detail in the following paragraphs.

The Material relied upon

18. The documentary material provided on behalf of the applicant and the respondent on the stay application, and received by the Tribunal is as follows:

1. Submissions and references provided by the applicant on 10 August 2018: marked as Exhibit 1;

2. Submissions of the respondent dated 10 August 2018 and a criminal history extract from the Australian Criminal Intelligence Commission dated 6 August 2018: marked as Exhibit 2.

19. The applicant gave oral submissions and was questioned about the matters which the Tribunal is required to consider under section 30 of the Act. The applicant was not cross-examined or tested in relation to that oral information. The applicant’s statements and submissions have been considered even if reference is not made to all of those matters in these reasons.

20. This is an interim application and only matters which are agreed or established shall form part of the factual basis for the decision.

Legislative provisions

21. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. The initial application to the Children’s Guardian was dated 16 July 2018.

22. In CHB v Children’s Guardian [2016] NSWCATAD 214 the Tribunal held that section 30(1A) of the Act applies where the Children’s Guardian has made a decision to cancel a person’s Working with Children Check Clearance after the commencement of the amendments and the application for review is made after the commencement of those amendments.

23. The Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) amendments to the Act commenced on 25 October 2016. In particular the amendments made to section 30(1) do not apply to or in respect of a review (or an appeal arising from a review) if the review commenced before that amendment and that provision, as in force immediately before that amendment, continues to apply to and in respect of any such review or appeal: Schedule 3 Part 5 clause 25 of the Act. This review commenced after the commencement of those amendments.

24. The Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) (“2018 Amendment Act”) was given assent on 18 April 2018 and relevantly for this review the amendment to subsection 30(1)(h) and insertion of subsection 30(1)(i1) of the Act both commenced on 1 June 2018. Section 5B of the Act was inserted and commenced at the same time.

25. There were no transitional provisions in the 2018 Amendment Act.

26. Because of the terms of section 30 of the Interpretation Act 1987 (NSW) the amendments will be applied: see SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 per Basten JA (with whom Ward and Simpson JJA agreed) esp. at [33]-[36]. None of those amendments purport to affect or vary in any material way any rights, liabilities, or obligations of any person but simply specify existing factual matters which must be taken into account by the Tribunal. The antecedent factual matters are the basis for making a determination as to the future grant of the Working with Children Check Clearance by way of an enabling order: see also Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31, per Jordan CJ; Robertson v City of Nunawading [1973] VR 819 at 824, per Victorian Full Supreme Court; Re A Solicitor’s Clerk [1957] 1 WLR 1219; La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Court of the Federal Court); Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856. The presumption against retrospectivity does not apply in these circumstances. This determination is also appropriate since the nature of the application and the issue the Tribunal is to decide in these proceedings is whether the applicant has discharged the onus to prove that he does not now pose a risk to the safety of children. This determination is also consistent with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214.

27. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a Working with Children Check Clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.

28. The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.

29. There is no relevant definition of “child abuse” contained in the Act.

30. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of “child and young person abuse” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence 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”

31. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:

“The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.”

32. This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition of abuse contained in section 4 (1) of the Family Law Act 1975 (Cth).

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.” That is not the circumstance in relation to the applicant. The applicant was convicted and fined.

36. The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.

37. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offence. The offence with which the applicant was charged was an offence where he “unlawfully and indecently assaults another” person and therefore the offence is not specifically an offence involving children, in the circumstances referred to later in these reasons. The applicant could not say whether any children witnessed the offence but conceded that it is possible children saw the indecent assault. The applicant does not recall seeing any children at the time but stated that the circumstances were “a bit of a blur”.

38. The offence with which the applicant was charged and convicted falls within clause 1(1)(z) of Schedule 2 of the Act. The comparable provision of the Crimes Act 1900 (NSW) is section 61L although the maximum sentence is imprisonment for 7 years in the applicable Queensland legislation at the time of the offence.

39. Therefore, the applicant is treated as a “disqualified person”. By reason of section 18 (1)(a) of the Act the Children’s Guardian must not grant a Working with Children Check Clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act. The Tribunal and not the Children’s Guardian has the power and the role to grant an enabling order, if appropriate.

40. The applicant seeks a Working with Children Check Clearance to work with children because he wants to be permitted to work as a bus driver where he is very likely to come into contact with children.

41. An enabling order is therefore sought pursuant to section 28 of the Act which provides in this matter:

“28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an

"enabling order" ). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order" ). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person's clearance has been cancelled under section 23,

because the person is a disqualified person.

(4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance.

(6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children's Guardian in accordance with the Tribunal's order.

(7) In any proceedings where 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.

(8) An enabling order may not be made subject to conditions.”

42. The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act. The Children’s Guardian is not permitted to grant an enabling order and must refuse the application because of the conviction which renders the applicant a disqualified person.

43. A person is not permitted to engage in “child-related work” unless they hold a Working with Children Check Clearance: see section 8 of the Act. There is no issue in this matter for the purposes of this application that the applicant wishes to engage in child-related work which therefore requires that the applicant obtain a Working with Children Check Clearance: see section 6(2)(l) of the Act; regulation 15 of the Child Protection (Working with Children) Regulation 2013 (NSW). The applicant also wishes to engage in voluntary work which would appear to also require a clearance.

Standard of Proof and Onus of Proof

44. It can be seen from section 28 (7) of the Act that is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

45. Untested allegations and the manner in which the Tribunal is to approach them has recently been considered in Children’s Guardian v CKF [2017] NSWSC 893 and by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174. In this matter there was a conviction for indecent assault. That is an established fact and the plea of guilty is taken to be an admission or plea to the elements of the offence.

Required Considerations

46. The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are relevantly for this application:

“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 criminal history and the conduct of the person since the matters occurred,

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

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

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

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

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

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

(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.”

47. These provisions were recently amended as observed earlier in these reasons. The amendments are included in the extract.

48. It must also be observed that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): BKE v Office of the Children’s Guardian, at [4], [25], [27].

49. The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

The Issues

50. The Tribunal is to ultimately determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk to the safety of children: section 28 (7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before the Tribunal at the final hearing in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.

51. The applicant seeks a stay of the decision made that he is a disqualified person and refused a clearance so that he can continue working as a bus driver and work in a voluntary capacity.

52. It has previously been said by the Court of Appeal that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83].

53. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104].

54. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]:

"[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:

"In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only."

[104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight."

55. The Tribunal has previously considered the grant of a stay in section 27 proceedings in BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111. In BXJ v Children's Guardian [2016] NSWCATAD 11 (BXJ) the Tribunal considered whether to extend a stay which had been previously granted by the Principal Member, on conditions, to the date of final hearing. It was stated by the Tribunal in that matter BXJ, relying upon reasoning which is set out in those reasons, that:

“[22] It is thus considered doubtful that the Tribunal, in the circumstances of the application before it brought by BXJ, could lawfully attach conditions which would be permitted by the legislation effectively to the grant of an interim clearance as proposed, if the Tribunal decided that it would be appropriate or desirable to grant a stay on conditions.”

56. The discussion which follows is repetitive of matters set out in other judgments of the Tribunal, but is set out again in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that a party aggrieved by a decision made under the Act 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; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children’s Guardian; Children’s Guardian v BQJ [2016] NSWSC 869. The law applied to this decision is therefore set out in these reasons.

57. In determining whether the applicant does pose a risk to children it is accepted that the risk must be “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 69, 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); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

58. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

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

...

[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. 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.

59. In Children’s Guardian v CKF [2017] NSWSC 893 Justice Davies agreed that the correct approach to risk is as outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted in the previous paragraph. In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Justice Harrison considered what use could be made of events where the Tribunal had a lingering doubt or suspicion remains. That would appear to be of little relevance in this particular matter. In addition, the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children’s Guardian and the Tribunal are entitled to act, or more practically may lend some weight to other risk factors.

Other matters

60. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal 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.

61. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offences which resulted in the convictions: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any criminal charges or reports of behaviour which may impact upon the risk assessment are also able to be considered, if considered appropriately relevant, for the same reasons. At this stage of the proceedings there is very little information about the circumstances surrounding the offence which renders the applicant a disqualified person. There is also minimal information concerning the other offences in the applicant’s criminal history. The applicant gave some oral information about those offences. There is no official or objective evidence of those matters.

62. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act 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.

60. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, 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] NSWIR Comm 101 at [130]. The applicant has already been punished for the criminal matters in his history including the disqualification offence.

Consideration of the evidence

64. On an application under section 28 or 29 of the Act the Tribunal may stay the operation of a determination of the Children’s Guardian under the Act pending determination of the matter: section 30 (2) of the Act. The provisions of section 30 (1) of the Act “must” be applied in “determining an application” under Part 4 of the Act. This interim application is not determining or ending or concluding the application for review. However, it is relevant to consider, even if briefly, the matters in section 30(1) of the Act. This is not a preliminary hearing.

65. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which is the application for an enabling order under section 28. The evidence received by the Tribunal is therefore required to be considered under each of the current subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. There are now thirteen subsections. Some of the subsections may be thought less relevant and may be given less weight than others. Where there is minimal information for consideration of that criterion the Tribunal has to do the best it can with the information currently before it. However, each of the subsections is to be considered. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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

66. The disqualifying offence occurred in a public place. The applicant says that he exposed his penis by undoing his pants and allowing the victim in particular to see him. The police were called and arrived quickly enough to arrest the applicant. The applicant says that the incident was a “bit of a blur”. The applicant says that he was sober at the time. The applicant says that he attended the shopping centre with his mother and father. It is not known where they were at this time.

67. The victim was apparently unknown to the applicant but was a woman aged between 25 years and 35 years according to the applicant.

68. There is limited information other than these facts which were obtained orally from the applicant. The factual circumstances were not included in the written submission made by the applicant nor were they included in the application forms filed by the applicant.

69. The offence was serious enough to attract the description of being an indecent assault under the criminal law. The maximum sentence was seven years imprisonment. The applicant was fined $400 for the offence. These details were provided by the criminal history obtained by the respondent.

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

70. The offences occurred nearly 25 years ago.

71. Since then the applicant has been employed in a number of capacities some of which were obviously managerial and required a scientific qualification of a high level.

72. The applicant moved from Queensland to New South Wales but it is not known when this occurred.

73. The applicant has not been convicted of illegal or antisocial activities in the more recent past.

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

74. The applicant was aged 35 years at the time of the disqualifying offence.

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

75. The female victim of the disqualifying offence was aged between 25 and 35 years according to the oral submission made by the applicant.

76. The victim was in a public place, a shopping centre. The victim was entitled to assume that she would not be indecently assaulted in a public place going about her own business. The specific attributes of the victim are not currently before the Tribunal and thus it is not known if the victim had any specific vulnerabilities.

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

77. The difference in age between the victim and the applicant is possibly as much as 10 years. This however may be inaccurate. There is little information other than the oral submission of the applicant as to a ten-year age range for the victim. Further information will no doubt be obtained for the final hearing.

78. There is no information as to the relationship between the applicant and the victim. It is presumed from the applicant’s submissions made to the Tribunal that this person was unknown to the applicant.

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

79. The applicant says that the victim was not a child.

80. The applicant conceded that it is possible that a child saw the offence because it took place in a public area. A child may therefore have been a victim but was not the primary victim in relation to the offence. There is no information apart from this submission that any child saw the offence.

The person’s present age

81. The applicant is currently aged 62 years.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred

82. The applicant was convicted of the disqualifying offence which is considered to be serious.

83. The applicant has a criminal history including 2 charges of making obscene telephone calls in 1985. The applicant explained that this was in relation to one of his wife’s friends. On each charge the applicant was convicted and fined $80.

84. The applicant was also convicted of the possession of cannabis in 1973 when he was aged 17. The applicant was fined $500 and in default a sentence of imprisonment for four months was ordered. It is presumed that the applicant paid the fine.

85. Since the conviction in 1994 the applicant has been offence free. The applicant has engaged in prosocial activities and been in employment. The applicant has raised a family and has four grandchildren.

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

86. The applicant is a mature person whose wife attended the Tribunal to support him. The applicant has a supportive family according to his submissions.

87. The Tribunal is to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant independent of any expert opinion.

88. An indicator of future behaviour generally is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which the person behaved. Regrettably, the applicant states that he has no reason to put forward as to why he behaved in the way that he did. The applicant states that he thinks he had a breakdown due to observing the death of a friend who fell from a roof during a church ‘working bee’ just prior to the offence. The friend fell 7 metres and landed headfirst on the concrete below. The applicant says that there were serious fractures to his friend’s neck, head and back as well as numerous other fractures. The applicant says that this was an incredibly traumatic experience for him to witness.

89. The applicant referred to a psychological or psychiatric report which was probably used in relation to the plea of guilty sentencing process. That report is not available to the Tribunal. It would be useful to know what it contained.

90. Of significance is the fact that the applicant has been offence free in the community since the offence in 1994.

91. The applicant reports that he is involved in prosocial activities. Those interests might be considered as protective factors.

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

92. The applicant is not apparently the subject of any current order.

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

93. The applicant has provided limited information in relation to the application which is referred to elsewhere in these reasons.

94. There will need to be further information provided for the final hearing. The applicant failed to give any detail of the offences with which he has been charged and convicted in the past. The Tribunal questioned the applicant in order to obtain sufficient information to address the statutory requirements.

Any relevant information in relation to the person that was obtained in accordance with section 36A

95. The applicant’s criminal history from Queensland and Tasmania is contained within the printout dated 6 August 2018 from the Australian Criminal Intelligence Commission.

Any other matters that the Children’s Guardian considers necessary

96. The Children’s Guardian made submissions addressing matters the Children’s Guardian considers necessary.

97. The Children’s Guardian submits that the applicant should not be granted a stay.

The interests of any persons who may be affected by the determination of the application

98. The applicant is affected by the fact that he does not have a Working With Children Check Clearance and the applicant states that he will lose his job as a bus driver and be unable to work in a voluntary capacity if there is no stay granted. There is no evidence provided by the applicant that this is the case.

99. The applicant has been working as a bus driver for the last five years. The applicant stated that he retired from the “corporate world” in order to do something local and something which was a complete change from his usual pressures of work.

100. The applicant previously applied for and obtained a clearance but it is not known whether he disclosed his conviction in Queensland for indecent assault.

101. However, the current employer has provided some letters by way of reference, to the effect that the applicant is a valued and trustworthy employee who has been commended for his behaviour and work practices. It is clear from those references that his employer makes no reference to any knowledge that the applicant had been convicted of indecent assault.

102. The applicant has qualifications in the science field. The applicant also has significant involvement in a Christian Church. The applicant also has been appointed testamentary Guardian under the wills of some friends. The applicant has two married daughters and four grandchildren. The applicant says that his aim is to be positive, helpful person to everyone that he comes across. The applicant impressed as an intelligent and presentable mature man. The applicant will be adversely affected if he does not obtain a clearance. The hearing for the enabling order will occur later in September 2018.

The public interest

103. When assessing the public interest, it is relevant to have regard to the nature and seriousness of the offences. The offence clearly relates to the potential of the applicant to be a risk to the safety of children because the legislature has determined that it does. The interests of the public and children generally may be prejudiced if the applicant is permitted to work with children and it is ultimately found that he does pose a risk to the safety of children.

104. The conviction of the applicant is serious and the onus is borne by the applicant to show that he does not now pose a risk to the safety of children.

105. The Act is designed to protect the public and therefore the public interest is entitled to significant weight. It is in the public interest for persons who are considered to be a risk to the safety of children to be prevented from working with children.

Public Interest: section 30(1A)(b) of the Act

106. The Tribunal has considered the public interest test in a number of decisions including CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262. It was noted in that decision at [75] referring to Smith v Commissioner of Police [2014] NSWCATAD 184, that “the concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests”.

107. The decision of the Victorian Court of Appeal in Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 at [24]-[37] referred to the following matters:

[24]   As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[7]

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[8]

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’.[9] The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.[10]

[26]   The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.

[27] Whilst it might be possible to demonstrate that the Tribunal erred in law if it took into account an extraneous factor, it will necessarily be difficult to demonstrate in this context that it misdirected itself in respect of the public interest by failing to have regard to factors which are not imperatively relevant to the achievement of the purpose of the Act.

[28]   In particular, where the Tribunal, as in the present case, finds that it is positively satisfied that the giving of an assessment notice is in the public interest, it will be difficult to disturb that conclusion because:

(a)   a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest;

(b)   the public interest includes matters of such potential breadth that it requires a situational definition by the decision maker having regard to the circumstances of the case;

(c)   the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification;

(d)   Parliament vested in the Tribunal - not the Secretary nor the Minister nor this Court – the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case.

[29]   In our view, for reasons we shall come to, a fair reading of the Tribunal’s reasons shows that in neither case did the Tribunal improperly restrict in any way the range of matters potentially relevant to determining what was in the public interest.

[30]   Thus, it is not sufficient for the Secretary to hypothesise a factor which might be potentially relevant to the Tribunal’s decision and then show that the Tribunal did not consider it. The Secretary must demonstrate that the Tribunal was bound to have regard to the factor identified by her and that it failed to do so.[11]

[31]   In the present cases, it cannot be said that the factor of ‘public confidence in the assessment of persons as suitable for child-related work’[12] necessarily required consideration once it was concluded that the applicants did not objectively pose an unjustifiable risk to the safety of children.

[32] First, the perception, as distinct from the fact, of risk is not a factor specifically identified as relevant by the Act, nor can it be said to be imperatively relevant to the achievement of the purpose of the Act.

[33] Secondly, the fact that the Act gives the Tribunal a discretion with respect to the giving of notices of assessment to offenders of the class in question counts strongly against the conclusion that mere categorisation by reference to the offence in issue (or any other negative matter able to be taken into account under s 26(2)) is a proper basis for concluding that the public interest requires refusal.

[34]   Thirdly, it is implicit in the Secretary’s submission that the Tribunal may conclude that it would be objectively just to give a notice having regard to the circumstances of an applicant, but not in the public interest to do so because of the probable popular perception of an objectively just decision. It would, in our view, ordinarily require a clear mandate for the Tribunal to regard itself as bound to proceed on the basis of its view of probable public perceptions rather than its view of the objective justice of the situation. We will expand on this matter in a moment.

[35]   Fourthly, there was no evidence before the Tribunal in either of the present cases of public perceptions of the working with children check system nor any evidence of the likely impact of the giving of the notices in question upon public perceptions. The factor put forward by the Secretary is essentially one of no more than a speculative risk of adverse public perceptions.

[36]   Fifthly, insofar as it was hypothesised that the Tribunal should have regard to likely public perceptions of the exercise of its discretion without any public knowledge of the facts of the case or the reasons of the Tribunal, we do not see how such a consideration could rationally be given weight.[13] Such an approach would require the Tribunal to effectively disregard its own view of the merits of the case upon the evidence for fear of uninformed public sentiment.

[37]   Sixthly, in any event, why should the Tribunal be required to assume that the ultimate public reaction to a carefully reasoned, just and objectively sound decision to grant an assessment notice would or might be a negative or critical reaction? On the contrary, it might well be considered that, at least in the long term, public confidence in the system is better served by rational decision making based on objective evidence rather than by avoiding such decision-making out of fear that the public will think ill of it. This is the view which underpins the rule of law generally in our society and we can see no basis for concluding that such an approach would not be open to the Tribunal. Why should the Tribunal effectively ignore the point made by the Attorney in the second reading speech that, because a negative notice will place significant restrictions on a person’s employment and community involvement, a ‘full range of appeal rights’ is provided in order to ‘ensure’ that no-one is unfairly treated.

(footnotes references omitted)

108. This decision was referred to in ZZ v Secretary, Department of Justice [2013] VSC 267 where it was also observed by Bell J at [202]:

[202] While decisions of the tribunal have correctly emphasised that the main purpose of the Working with Children Act is the protection of children from harm, they have also acknowledged the relevance and importance of rehabilitating offenders, their right to work and other similar considerations.[See eg BGD v Secretary, Department of Justice [2010] VCAT 50 (8 January 2010) [62] (Judge Harbison, Vice-President) (‘BGD’); FC v Director of Public Transport [2010] VCAT 437 (6 April 2010) [27] (Macnamara DP) (under the Transport (Compliance and Miscellaneous) Amendment Act) (‘FC’); WSO v Secretary, Department of Justice [2010] VCAT 1522 (16 July 2010) [55] (Judge Hampel, Vice-President) (‘WSO).] So, in MH,[[2008] VCAT 1514 (22 July 2008)] her Honour Judge Harbison said the Working with Children Act did not prevent all persons with a serious criminal record from ever working with children again. Rather:

It is designed so that an informed assessment can be made in every individual case of the risk of harm to children arising out of his or her past behaviour. It places a heavy burden on the decision maker, to make an assessment as to what is likely to happen in the future, based on what is known to have happened in the past. The assessment must be rigorously made, given the aim of the legislation, which is the protection of very vulnerable children from sexual harm or violence.[ Ibid [35]]

109. The applicant has been a productive member of the community since his offence. It was submitted that it would be unfair and punitive for the applicant not to be able to continue to do those things he has usually done up until now. It is thus necessary to consider in the circumstances whether it would be in the public interest to make an order for a stay. The Tribunal observes that the public interest is not a confined concept. A balancing of the public interests present in this matter is required. The protection of the public is to be given significant weight.

110. It is the Tribunal’s determination that for the reasons which have been stated earlier and having regard to the objects of the Act and section 4 of the Act and having regard to the considerations extracted from the discussion of public interest in previous decisions, and the weight to be given to the public interest in deciding whether to grant a stay, it would not be in the public interest to make an order enabling the applicant to work with children in accordance with the Act on an interim basis. A stay order would allow that to happen.

111. There is sufficient material as referred to earlier in these reasons provided to the Tribunal which would allow a finding that it would not be in the public interest to grant a stay to the applicant. It is not in the interests of justice to grant a stay.

Consideration and determination

112. The Act is designed to be protective and there are a number of matters identified in the legislation which are relevant to an assessment of risk. They would not be included as factors which must be considered by the Tribunal unless they were matters which are relevant to the assessment of risk.

113. While there is a presumption that the applicant poses a risk to the safety of children, the applicant may be able to provide evidence which ultimately satisfies the Tribunal that he does not pose a risk to the safety of children.

114. The factors which have to be considered pursuant to section 30 (1) of the Act have been identified earlier in these reasons. It can be seen from those considerations that further evidence will be required to determine the application.

115. In 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 at [5] the Supreme Court (per White J as he then was) emphasised that in an injunction application it is not the Court’s task “to conduct a preliminary hearing”. In determining whether there is “a serious question to be tried” when considering an interlocutory injunction, his Honour stated that is to be assumed that any conflict in the evidence “would be resolved in the plaintiff’s favour.” The decision of Deputy President Hennessy in Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [34] applies that traditional formulation about interlocutory applications to a consideration of a stay pursuant to section 60 of the Administrative Decisions Review Act. The Deputy President also referred at [31] to [33] to the consideration of the prospects of the success or the merits of the review application as follows:

[31] The corresponding provision in the Administrative Appeals Tribunal Act 1975 (Cth), section 41, is in similar term but does not list the public interest as a mandatory consideration. Nevertheless, the prospects of success or the merits of the applicant’s case on review have been regarded as relevant: Re XTWK and Australian Securities and Investments Commission (2007) 46 AAR 350 at 354.

[32] In AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] the former Administrative Decisions Tribunal held that the phrase "secure the effectiveness of the determination" is another way of saying that there needs to be irreparable loss or harm to the applicant before consideration will be given to making an interim order. The Tribunal went on to say-

[15] Section 60 is to be read keeping in mind the common law principles in relation to the exercise of interlocutory injunctions. In Castlemaine Tooheys Limited v South Australia [1986] HCA 58, Acting Chief Justice Mason said at paragraph 11:

"The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction".

[33] In a practical sense the onus is on the applicant to make out a case that it is appropriate for the Tribunal to make such an order: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9], Wright J, President citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694.

116. The provisions of section 30 (2) of the Act are:

“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.”

117. Section 29 of the Act relates to the review of persons who have previously obtained enabling orders, which review may result in the revocation or confirmation of an enabling order, due to fresh evidence or subsequent events occurring since the original grant of enabling order. The provisions of section 30 (2) of the Act appear to be neither the same as an interlocutory injunction application nor a stay application pursuant to section 60 of the Administrative Decisions Review Act. However, the same principles should logically apply in relation to a consideration of the prospects of success of the enabling order application as an interlocutory step. The application pursuant to section 30 (2) of the Act specifically refers to a “determination by the Children’s Guardian under this Act”. The only matter ‘determined’ or stated by the Children’s Guardian is that the applicant is a disqualified person by reason of the conviction. The Children’s Guardian in those circumstances, because of the provisions of section 18 of the Act, has no discretion and must refuse the application for a Working With Children Check Clearance. Only the Tribunal can grant an enabling order.

118. The Children’s Guardian has previously submitted in CZI that section 30 of the Act does not permit in effect an “interim enabling order”. The argument correctly identifies that exactly the same considerations apply to the making of an enabling order on an interim basis as would apply to the making of an enabling order on a final basis. A stay application however, like an injunction application, is not an interim hearing as Justice White (as he then was) observed in 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd. The purpose of a stay or an injunction is usually to maintain the current position provided that does not prejudice one party’s interests more than another.

119. Further, the Children’s Guardian submitted previously that because section 28 (8) prohibits the making of an enabling order subject to conditions, this means that the Tribunal cannot make an interim enabling order a condition of which would be that it would expire at some future time. The so-called interim enabling order, however, would expire on the making of a final order at the final hearing. The Children’s Guardian submitted in the matter before the Tribunal that the stay order is not equivalent to an interim enabling order. That is consistent with the determination in 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd.

120. If the evidence remains as it is there is only a slight probability that the applicant will be found to have discharged the onus on him to prove that he is not a risk to the safety of children.

121. There is also no evidence, apart from the applicant’s assertion, that he will suffer irreparable injury or “lose his job” if the stay is not granted.

122. The Tribunal accepts that the history of the applicant and his employment as a bus driver for a significant period of time with no adverse reports, provides persuasive support for the view that the applicant does not pose a risk to the safety of children. The applicant, however, bears an onus to prove that he is not a risk to the safety of children and to overturn the presumption.

123. 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.

124. The applicant has been convicted of an offence which means he is a disqualified person for the purposes of the Act. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms for the protection of children and other people from indecent behaviour. The offending was inferentially at the lower end of seriousness for the range of offending because of the amount of the fine and the fact that there was no sentence of imprisonment.

125. The behaviour, if repeated, would do significant harm to any victims especially children. The paramount principle under the Act includes protection of children from suffering abuse.

126. The applicant is presumed to pose a real and appreciable risk to children. The disqualifying offence involved an adult. The legislature has included this offence in schedule 2 of the Act to provide that the applicant is presumed to pose a risk to the safety of children because of that offence.

127. Remorse on its own is not considered to be a factor that mitigates risk. The applicant expressed that it was a bad and shameful experience and there is an expression of remorse that the offence occurred.

128. 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. The applicant did not seek that conditions be placed on the grant of a stay. In BXJ v Children's Guardian [2016] NSWCATAD 11 (BXJ) the Tribunal considered whether to extend a stay which had been previously granted by the Principal Member, on conditions, to the date of final hearing. It was stated by the Tribunal in that matter that it is considered doubtful that the Tribunal, in the circumstances of the application, could lawfully attach conditions which would be permitted by the legislation effectively to the grant of an interim clearance as proposed, if the Tribunal decided that it would be appropriate or desirable to grant a stay on conditions. That is the conclusion in this matter.

129. The assessment of the Tribunal, based upon the previously identified information, therefore is that it is not desirable to grant a stay in order to secure the effectiveness of the determination of the application, taking into account both the interests of the applicant and the public interest.

130. The applicant has not on the present state of the evidence discharged the onus to prove that he does not now pose a risk to the safety of children. This is a task he now has on the final hearing.

131. The Tribunal agrees with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214 at [109]-[124]. The provisions of section 30 (1A) of the Act apply to this application.

Whether a reasonable person would allow his or her child to have contact with the applicant contemplated by subsection 30(1A)(a)

132. The Tribunal is required to consider subsection 30(1A) of the Act in the event that the Tribunal considers that the applicant does not pose a risk to children. That subsection provides that the Tribunal may not make an order under this Part of the Act which has the effect of enabling a person, or the affected person, to work with children in accordance with this Act unless the Tribunal is satisfied that:

1. a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child related work, and

2. it is in the public interest to make the order.

133. The Tribunal has previously considered this provision in CSZ v Children’s Guardian [2017] NSWCATAD 57, where an enabling order was made, and in CHB v Children’s Guardian [2016] NSWCATAD 214 where the applicant had a clearance cancelled by the Children’s Guardian and the Tribunal confirmed that decision. It was observed that analogous to the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267. Therefore, the Tribunal will consider the provisions of section 30 (1A) of the Act in that context.

134. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse".

135. 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."

136. In CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 the Tribunal dealt with the ‘reasonable person test’. At paragraph [73] the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

137. The Tribunal is also satisfied that a reasonable person would not allow his or her child to have contact with the applicant contemplated by s 30(1A)(a), because that person would be acquainted with only the relevant facts about which the Tribunal is aware. The applicant has clearly been offence free since the offence which rendered him a disqualified person. The reasonable person would also be aware of the paucity of information provided by the applicant.

Conclusion

138. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act and having regard to the material before the Tribunal it is presumed unless proven to the contrary that the applicant does pose a risk to the safety of children and should not receive a Working with Children Check Clearance. The evidence has not at this point in time discharged the onus to prove that the applicant is not such a risk.

139. It is determined to not be in the public interest to grant a stay. The applicant will not suffer irreparable harm if a stay is not granted based on the information currently before the Tribunal. The interests of justice do not require the grant of a stay.

Order

140. The order of the Tribunal is that:

1. The application for a stay or interim order filed 8 August 2018 is refused and dismissed.

2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to 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.

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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

Decision last updated: 20 August 2018