Egd v Children's Guardian

[2020] NSWCATAD 221

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EGD v Children’s Guardian [2020] NSWCATAD 221

Hearing dates:

24 August 2020

Date of orders:

24 August 2020

Decision date:

07 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member
Prof P Foreman, General Member

Decision:

(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

(2) The applicant is not to be treated as a disqualified person for the offence, in respect of s.66C(1) of the Crimes Act 1900 (NSW), for which he was convicted on 10 November 1995.

(3) The application for an enabling order is granted.

(4) Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Check Clearance.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – disqualifying offences – enabling order – circumstances of offence – conduct of applicant in period since offences occurred– discharge of onus

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Commissioner for Children and Young People v FZ [2011] NSWCA 111

CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262

PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455

R v Commission for Children and Young People [2002] NSWIRComm 101

Smith v Commissioner of Police [2014] NSWCATAD 184

ZZ v Secretary of the Department of Justice [2013] VSC 267

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EGD (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
J Harris (Respondent)

Solicitors:
McGirr Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00084692

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The Applicant in these proceedings is referred to as "EGD". EGDs is a pseudonym used in these proceedings in conformity with the non-disclosure order.

2. On 17 March 2020, the applicant applied for an enabling order, pursuant to s28(1) of the Child Protection (Working with Children) Act 2012 (WWC Act.)

3. His application for a working with children check clearance was made on 5 February 2020.

4. On 25 February 2020, an interim bar was imposed upon the applicant because initial enquiries had revealed that, on 25 July 1995, the applicant had been convicted of sexual intercourse with a child between 10 and 16 years old, pursuant to Section 66C(1) of the Crimes Act 1990.

5. That offence is a disqualifying offence. On 28 February 2020, the respondent advised the applicant that he had been disqualified.

6. The offence occurred on 26 October 1994, when the applicant was 19 years of age. On that date, he had sexual intercourse with a 13 year old girl, whom he had met in March 1994 through a mutual friend. The offence is considered to be very serious.

7. The applicant is presumed to be a risk to children because of his conviction for this offence. He now seeks a finding by the Tribunal that he does not pose a risk to children.

8. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, including the applicant’s conduct in the intervening 24 years, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. The application for an enabling order is granted.

Background

9. The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

10. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

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

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

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

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

11. The applicant applied for a Working with Children Check Clearance on 5 February 2020. Subsequently, the respondent became aware of the applicant’s criminal history.

12. This history includes a ‘disqualifying offence’ under the Act. Therefore, the application was refused in accordance with s 18(1)(a).

13. The disqualifying criminal matter is as follows:

1. Sexual intercourse with a child between 10 and 16 years of age, pursuant to Section 66C(1) of the Crimes Act 1990.

14. The applicant pleaded guilty and was convicted and was issued a deferred sentence upon the applicant entering into a recognisance in the sum of $500.00. A 12 month good behaviour bond was imposed.

15. Consequently, on 28 February 2020, the Children's Guardian issued EGD with a Notice to Disqualified Person pursuant to s 18 of the Act.

16. On 17 March 2020, the applicant applied to the Tribunal for an enabling order. He seeks the clearance to enable him to accept a role as a coach for his daughter’s soccer team and to enable him to engage in business activities providing discos to primary aged children.

17. The grounds set out in the application for an enabling order are:

“It is unjust and reasonable:

The criminal offence (s66C) relate to an incident some 25 years ago where EGD had intercourse with the complainant (sic) however she was under the age of consent, the complainant (sic) being around 15 and EDG around 20;

EDG did not receive a custodial penalty;

He wishes to coach his daughter’s soccer team however cannot do so without a WWCC”.

18. The issue to be decided by the Tribunal is whether the applicant should be granted an enabling order under s 28 of the Act.

19. In reaching this position the Tribunal is required to consider section 30(1) and (1A) and determine whether he has rebutted the presumption that he poses a risk to the safety and well-being of children.

20. We are also mindful of the Superior Court guidance that the risk must be both real and appreciable.

The working with children legislative scheme

21. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

22. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.

23. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

24. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act. It is not disputed that the role that the applicant proposes to perform is child related work.

25. Section 18 of the Act constrains the Children’s Guardian from granting clearances to disqualified persons.

18 Determination of applications for clearances

(1)   The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a)   a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b)   a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

26. Disqualified persons do not undergo a formal assessment before the Children’s Guardian, as the Act mandates that the Children’s Guardian must not grant a clearance to such persons.

27. It is the Tribunal that must conduct an assessment of a disqualified person’s risk if an application for an enabling order is made to the Tribunal.

Jurisdiction

28. Part 4 of the Act deals with reviews and appeals. Section 28 provides for the making of an enabling order by the Tribunal of disqualified persons. Relevant to these proceedings the section provides:

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.

(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.

(9)   (Repealed)

29. As a preliminary finding, we note that the Children’s Guardian has refused the applicant’s request for a clearance and the conditions of s 28(3)(a) are satisfied.

30. Based on this finding and noting that the application was received within time, there is no dispute that the Tribunal has jurisdiction to hear the matter.

31. Section 30 sets out the factors that the Tribunal must consider in determining an application. We will address each of the matters under s 30(1) later in these reasons.

Burden of Proof

32. In this case there is a presumption that the applicant poses a risk to children, as the applicant is a disqualified person seeking an enabling order pursuant to s 28 of the Act. (s28(7)).

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

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

34. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

The Hearing

35. The hearing was conducted by video conferencing on 24 August 2020, to comply with restrictions imposed in response to the Covid-19 virus.

Written evidence

36. The applicant tendered the following evidence:

37. Application, dated 17 March 2020 – Exhibit A1;

38. Affidavit of EDG, affirmed on 25 June 2020, together with three references – Exhibit A2;

39. Reference from Janette Daniel, dated 6 July 2020 - Exhibit A3;

40. Report of Dr Christopher Lennings OAM, Psychologist, dated 13 August 2020 – Exhibit A4.

41. The respondent tendered the following evidence:

42. Documents filed on 9 April 2020 – Exhibit R1;

43. Documents filed on 22 June 2020 – Exhibit R2.

Applicant’s submissions

44. The applicant made submissions by way of an Affidavit, dated 25 June 2020, and by way of oral testimony. He conceded that he was convicted, in 1995, relating to an incident when he was 19 years of age. He also conceded that he had sexual intercourse with a girl who was, at the time, 13, although he stated that he thought she was 14.

45. The applicant said that he now sincerely regrets what occurred, but that he was very young and did not fully appreciate, at that time, the seriousness of his conduct.

46. The applicant stated that he did not behave in a predatory manner. He submitted that he did not impose himself upon the child, who participated willingly in the activity, but he now accepts that she was not lawfully able to consent to sexual intercourse.

47. Furthermore, the applicant submitted that he cooperated fully with the Police and pleaded guilty at the earliest possible stage. He noted that the District Court Judge, Phelan DCJ, did not impose a sentence of imprisonment but placed him on a recognisance bond for 12 months to be of good behaviour, with a conviction being recorded.

48. The applicant told the Tribunal that since the time of his offence, nearly 26 years ago, he has never committed any other offence of a sexual nature or been accused of any such offence.

49. In relation to his subsequent criminal history, he conceded that he was charged with a mid-range drink driving offence in 2003. As a result of being convicted, his licence was suspended and he was fined.

50. He was also convicted with “assault occasioning actual bodily harm” in 2006. He told the Tribunal that he was involved in an altercation at Kings Cross and that he was defending himself from a man who had threatened to kill him. He conceded that the force that he employed in his attempt to defend himself was excessive and that is why he pleaded guilty. He was fined $750.00 with no other penalty.

51. He rejected the suggestion that he is a risk to the safety and well-being of children.

52. He said that since the index offence, he has developed his business, is involved in a long term de facto relationship and is now the father of a five year old daughter.

53. The applicant told the Tribunal that he wishes to coach his daughter’s soccer team. At training and games, he said there are usually at least five parents in attendance watching their children. Training would take place once a week with a game on each weekend during the soccer season, between April and September.

54. The applicant also submitted that between 1997 and 2007, he ran disco events for children aged between 12 and 17. This was prior to the working with children check arrangements being mandated. He denied any problem in relation to his interaction with children during those 10 years.

55. He told the Tribunal that he has worked as a disc jockey for weddings and other events, at which children are present, for approximately 20 years. It is his current intention to be able to secure work running disco events for children with an age range of pre-school to primary school. He said that all children would need to be accompanied by a parent. He expects that 700 to 1,000 people would be at each event in addition to security personnel, venue staff and up to 300 parents of the attendees.

56. The applicant asked the Tribunal to consider the information contained in his character references.

57. He also asked the Tribunal to take into the account the opinion of Dr Christopher Lennings, Psychologist, whose report is dated 13 August 2020.

Respondent’s Submissions

58. The respondent adopted a neutral stance and neither opposed nor supported the application.

59. The respondent’s written submissions set out the statutory framework and applicable principles.

60. The respondent submits that the Tribunal may grant an enabling order only if:

61. The applicant proves he is not a real and appreciable risk to the safety of children;

62. The Tribunal is satisfied that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person whilst he was engaged in any child related work; and

63. The Tribunal is satisfied that it is in public interest to make the order.

Section 30 (1) considerations

64. Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider in determining an application. In this matter, the facts are not disputed.

(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.

65. The applicant's application to the Tribunal is brought because he was convicted of the disqualifying offence pursuant to Section 66C(1) Crimes Act 1990.

66. The Tribunal was provided with the Police FACTS sheet. The applicant agreed that, with the exception of the record that the victim was taken to the Child Protection Unit at the Prince of Wales Children’s Hospital, a matter about which the applicant said he had no knowledge, he agreed with the contents of that document, dated 21 December 1994.

67. In summary, the Police FACTS include the following:

68. In March 1994, the applicant met the victim (a 13 year old female) through a mutual friend. Over a period of time, they became friends.

69. On Wednesday, 26 October 1994, the victim (who was in year 8 at a local high school) rang the applicant from school and made arrangements to meet him that afternoon. The applicant drove his car and parked in a street near the school. At about 2:00 pm, the victim left the school grounds and met the applicant. They drove together to the applicant’s house and had consensual intercourse.

70. The Police then attended the victim’s premises on 10 November 1994 and were informed of the incident.

71. The applicant attended the local Police Station with his parents on 24 November 1994 and was interviewed in the presence of his father. He admitted that he had had sexual intercourse with the victim, who consented to the act. He stated that he believed the victim was 14 years of age.

72. The applicant pleaded guilty to the offence. The Judge imposed a 12 month good behaviour bond and deferred sentence upon the applicant entering into a recognisance in the sum of $500.00.

65. The Tribunal finds that the offence is objectively very serious.

66. However, the Tribunal also takes into account the fact that, other than the victim’s age, there do not appear to have been any aggravating features.

67. The Tribunal was also satisfied that the applicant cooperated fully with the Police and made full admissions and pleaded guilty.

68. The Tribunal must consider the seriousness of the offence in the context of the societal attitudes and the law in relation to the offence at the time of the index offence. The Tribunal notes that Section 66C of the Crimes Act 1990 was amended in June 2003, with the effect that the maximum sentence was doubled.

69. The respondent submitted, and the Tribunal accepts, that this amendment reflects a change in societal attitudes towards the seriousness of this offence, since the date on which the index offence occurred.

70. The Tribunal also takes into account the relatively young age of the applicant, at the time of the index offence when weighing the seriousness of the offence.

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

79. The offence occurred in 1994, nearly 26 years ago. Since that time, the applicant has been employed, including employment for a period of a decade, in running school discos for teenagers. The applicant has been with his current partner for 8 years and they have a daughter who was born in 2014.

80. Since the index offence, the applicant has been convicted of two further offences. In 2003, he was convicted with mid-range drink driving. As a consequence, his licence was suspended and he was fined.

81. In 2006, he was convicted with assault occasioning actual bodily harm. The circumstances of this offence are set out in the Police FACTS. The applicant told the Tribunal that he agrees with the information as set out in that document.

82. The applicant pleaded guilty and was fined $750.00.

83. There is no evidence that the applicant has been accused or convicted of any crimes against children since the index offence.

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

84. The applicant was 19 years and seven months of age when the disqualifying offence 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.

85. The victim was 13 years of age when the disqualifying offence occurred.

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

86. The difference in age between the applicant and the victim was six and a half years.

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

87. The applicant conceded that he thought the victim was 14 years of age. Therefore, he was aware that she was a child.

(g) The person's present age.

88. The applicant is currently 45 years old.

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

89. As set out above, the applicant has two other matters recorded against him.

90. In relation to his mid-range PCA in 2003, the Police FACTS reveal that he was stopped on 20 November 2003 and recorded a blood alcohol content reading of 0.115.

91. The details in relation to the assault occasioning actual bodily harm are set out above.

92. The applicant also has other minor driving offences. There are no records of any offences against children.

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

93. It is self evident that any repetition of the offence would have an extremely serious impact on children.

94. The respondent submitted that the Tribunal should accept that there is no evidence that there has been any repetition of the applicant’s conduct in the 26 years since the time of the index offence.

95. The Tribunal had access to the report of Dr Christopher Lennings, Clinical Psychologist, dated 13 August 2020. Dr Lennings is a qualified Clinical Psychologist and obtained his PhD in 1995 from Macquarie University. He provides Court assessments for a large number of Courts and Tribunals throughout Australia. Recent cases have involved preparing reports on sex offenders. There was no dispute about the fact that Dr Lennings is a suitably qualified expert witness.

96. Dr Lennings gave evidence by way of video link which was consistent with the information contained in his report. He told the Tribunal that he conducted a number of tests to assess any risk posed by this applicant to children. He testified that there are two broad types of data used in risk assessment. The first of these is what is described as historical or static variables, and the second refers to dynamic factors, representing variables that a person is supposed to have need or deficit in which can be altered by time, treatment and opportunity. Examples of dynamic factors may include substance abuse, mental illness, employment and other factors.

97. Dr Lennings considered whether the applicant presented any sexual risk of harm. He noted that the applicant’s offence occurred 25 years ago. He testified that current research indicates that the risk of reoffending halves approximately every five years that an offender is available in the community to offend but does not do so.

98. He wrote: “After 20 years all measurable risk has dissipated”. He said that EGD’s risk of causing sexual harm is “so low as to be undetectable by any instrument developed to assess risk”.

99. He said the applicant has realistic life plans, does not have any mental illness or personality disorder, is respectful of others, does not have substance abuse disorder and has capacity for stability in romantic and non-romantic relationships and is stable in all facets of his psycho-social assessment. There are no risk factors current. Historical risk factors , such as alcohol misuse, are no longer relevant taking into account the applicant’s reduction in the use of alcohol.

100. Dr Lennings also expressed the view that the risk of any physical violence posed by EGD is so low that it cannot be quantified.

101. In relation to general child protection risks, Dr Lennings wrote that there is no indicator that the applicant presents a child protection risk.

102. In summary, Dr Lennings wrote that the index offence does not have any current relevance in terms of assessing the applicant’s risk to children. He expressed the view that the applicant is not a risk to children by any measurable risk assessment.

103. There is no evidence available to the Tribunal to contradict Dr Lennings’ expert opinion and the Tribunal, therefore, accepted it.

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

104. The respondent noted that, in his Affidavit, the applicant stated that when the index offence occurred it was “an extremely stressful time in [his] life”. The respondent also stated that the applicant did not behave in a predatory manner but noted his statement that the applicant regrets “ever putting [himself] in that situation” without reflecting on the effect of the offence on his victim.

105. During cross examination, the applicant reflected on the effect of his conduct on the victim and her family.

106. The respondent, quite appropriately, referred the Tribunal to a reference from a female friend of the applicant, which stated that she is aware of the applicant’s history but does not have any concerns about the applicant presenting any risk to the safety of her children.

107. The Tribunal has considered this and the other references provided.

108. In his Affidavit and his initial testimony to the Tribunal, the applicant stated that he had been in a relationship for some time with the victim. However, he later said that this was not the case. He explained the discrepancy in his testimony by saying that the index offence had occurred 26 years ago and that he could not remember every detail.

109. The Tribunal was not persuaded by that explanation. However, in view of the fact that the applicant pleaded guilty at the earliest opportunity, the Tribunal does not consider this discrepancy to have material effect at this time.

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

110. No material was obtained in accordance with the section.

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

111. The respondent noted that should the Tribunal grant a clearance, it would enable the applicant to perform any child related work, not just the activities that he has nominated, namely running discos for school aged children at which parents would be present. The respondent noted that a clearance would entitle the applicant to have direct and unsupervised conduct with children, whilst engaged in any child related work.

112. The Children’s Guardian submitted that she wishes to take a neutral position in relation to this claim. She neither supports nor opposes the application.

113. Counsel for the respondent submitted that there are competing aspects in the public interest that the Tribunal must consider: on the one hand, the need to protect children from harm; and on the other hand, there is a public interest in rehabilitation of offenders, in light of the length of time since the relevant offences were committed and the conduct of the offender during that time.

The statutory approach

114. The superior Courts have set out the statutory approach that the Tribunal must apply when determining the substantive question of risk.

115. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take.

116. As stated, the applicant has three convictions which are potentially relevant, including the disqualifying offence.

Consideration

117. Our substantive role is to assess risk; specifically, whether the applicant poses a risk to the safety and well-being of children and young people.

118. We have based our consideration on all of the evidence provided by the parties in documentary form. We have also analysed the circumstances of the disqualifying offence and the applicant’s subsequent conduct.

119. Notwithstanding the disqualifying provisions, and the positive finding against the applicant; having accepted the expert testimony of Dr Lennings, we do not find that that the disqualifying offence that occurred 25 years ago demonstrates any current risk as set out by Young J in Commission for Children and Young People v V as referred to (above).

120. We also accept Dr Lennings’ evidence that the drink driving offence does not demonstrate a risk to children. The Tribunal accepted the applicant’s evidence that he has reduced his drinking considerably. Furthermore, there is no suggestion that alcohol consumption played any role in the commission of the index offence. Therefore, the drink driving conviction does not demonstrate any real or appreciable risk to children.

121. The assault occasioning actual bodily harm conviction is said to have occurred in the context of excessive self defence. We accept the applicant’s evidence in relation to this because there is nothing to contradict it and this submission appears to have been accepted by the Court at the relevant time. We accept Dr Lennings’ evidence, for the reasons set out earlier, that this offence does not demonstrate any real or appreciable risk to physical harm to children.

122. In particular, we have taken into account the fact that since the index offence, which was committed when the applicant was himself very young, there has not been any suggestion that he has behaved in a manner which presents a risk to the safety, welfare or well-being of children.

123. We note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act. In making these findings, we are of the view that the applicant has discharged his onus under s 28 (7) of the Act.

124. Therefore, we are not satisfied that the applicant currently poses a real and appreciable risk to children. We find that the applicant does not pose a risk to the safety and well-being of children and young persons.

Section 30 (1A) consideration and findings

125. Having made the finding that we have, we are required to consider this section, which requires that the making of the order be in the public interest.

(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.

126. The case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 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.

127. In our view, a reasonable person acquainted with all of the evidence and submissions before the Tribunal, would not approach the matter with a closed mind but apply an objective test in consideration of all the material.

128. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the relevance and circumstances of the disqualifying matter and the evidence of the applicant concerning the last 25 years.

129. Regard would also be given to the fact that the applicant has not been accused or convicted of any offences against children, despite the fact that he ran school aged discos for a decade.

130. It is also relevant that he was, at the time of the index offence, only 19 years of age, and has since matured, is in a committed relationship, and has a daughter of his own.

131. A reasonable person would, in our view, find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).

132. We find that 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

133. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74.   The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

134. In our view there is nothing to demonstrate or suggest that that it would be contrary to public interest to grant a clearance.

135. Having found that the issuing of a clearance would not pose an unjustified risk to the safety of children, we find that the applicant’s desire to engage in community activities and the protection of children are, in this instance, complementary and in the public interest.

136. In accordance with PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we find that it is in the public interest to make the enabling order.

Conclusion

137. For the reasons set out above, we reach the following conclusion.

138. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does not pose a risk to the safety and well-being of children.

139. In our view, having regard to all of the material before the Tribunal, the applicant does not currently pose a risk to the safety of children.

140. It follows that the applicant should be granted an Enabling Order.

Orders

1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

2. The applicant is not to be treated as a disqualified person for the offence, in respect of s.66C(1) of the Crimes Act 1900 (NSW), for which he was convicted on 10 November 1995.

3. The application for an enabling order is granted.

4. Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Check Clearance.

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

Registrar

Decision last updated: 07 September 2020