Ejj v Children's Guardian

[2021] NSWCATAD 80

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EJJ v Children’s Guardian [2021] NSWCATAD 80

Hearing dates:

27 January 2021

Date of orders:

30 March 2021

Decision date:

30 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
P Foreman, General Member

Decision:

(1) Declare EJJ is not a disqualified person in relation to a conviction of sexual intercourse without consent (s61I of the Crimes Act 1900) on 12 May 1998 at Wollongong for the purposes of the Child Protection (Working with Children) Act 2012.

(2) The decision of the Children’s Guardian of 3 June 2020 is set aside.

(3) The Children’s Guardian is to grant EJJ a Working with Children Check Clearance forthwith.

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Child Protection (Prohibited Employment) Act 1998 (Repealed) 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

Category:

Principal judgment

Parties:

EJJ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
V Hartstein (Respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00185670

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

1. On 12 May 1998, the Applicant was convicted of sexual intercourse without consent, contrary to s61I of the Crimes Act 1900 (NSW). The victim was a 32 year old woman. The Applicant was sentenced to three years’ imprisonment with a non-parole period of one year.

2. The Applicant made an application for the issue of a Working with Children Check Clearance (‘WWCCC’) which was refused by the Respondent on 12 November 2014. The WWCCC was not granted on the basis that the Applicant was a disqualified person. On 3 December 2014, he applied to this Tribunal for an enabling order. Those proceedings were dismissed on 30 June 2015.

3. The Applicant again applied for a WWCCC on 14 May 2020.

4. By letter dated 3 June 2020, the Respondent informed the Applicant that he remained a disqualified person and his application for a WWCCC was again refused.

5. The Applicant is presumed to be a risk to children because he was convicted of the sexual offence in May 1998. He asks the Tribunal to find that he should not be deemed to be a disqualified person as he does not pose a risk to children.

6. On 23 June 2020, the Applicant filed an application in this Tribunal for an enabling order pursuant to s28 of the Child Protection (Working with Children) Act 2012 (‘the Act’). It is this application which is before us for determination.

7. The Applicant is referred to as ‘EJJ’. EJJ is the Applicant’s pseudonym used in these proceedings in conformity with the order referred to in para 8 below.

Background

8. The Tribunal has made an order 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.

9. 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.

10. EJJ applied for a Working with Children Check Clearance (WWCCC) on 14 May 2020. Upon undertaking a risk assessment, the Respondent became aware of a matter in EJJ’s history which included a criminal offence.

11. This matter was a ‘disqualifying offence’ under the Act and the application for a WWCCC was refused: in accordance with s 18(1)(a). The disqualifying criminal matter is as follows:

Sexual assault pursuant to s 61I of the Crimes Act 1900 (NSW)

12. EJJ initially denied the allegations of sexual assault but pleaded guilty to the offence. He was convicted and sentenced to imprisonment for three years; a minimum term of one year commencing 8 May 1998 and concluding 7 May 1999. At the end of the one year period EJJ was to be released subject to the supervision of the Probation and Parole Service, for such period as it thinks appropriate. This offence is commensurate with offences listed in Sch 2 of the Act, equating to a ‘disqualifying offence’ as defined under the Act at Sch 2 Cl 1 (1) (e).

13. Consequently, on 3 June 2020, the Children's Guardian issued EJJ with a Notice to a Disqualified Person pursuant to s 18 of the Act. EJJ seeks a WWCCC to enable him to carry out his role as an educator within Surf Lifesaving New South Wales without restriction.

14. The grounds of the application for an enabling order are:

‘1   Time since offence.

1. Age.

2. Antecedents.’

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

   16. 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. We are also mindful of the Superior Court guidance that the risk must be both realandappreciable.

The working with children legislative scheme

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

   22. 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.

   23. 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

24. 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:0

   (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)

[Emphasis added]

25. As a preliminary finding we note that the Children’s Guardian has refused EJJ’s request for a WWCCC and the conditions of s 28(3)(a) are satisfied.

26. 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.

27. Section 30 sets out the factors that the Tribunal must consider in determining an application. We have addressed each of the matters under s 30(1) below.

Burden of Proof

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

29. 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". ...'

30. These observations of Young CJ (in Equity) have 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

31. The hearing took place by audio visual link. Each of the parties filed written evidence. The EJJ was cross-examined. EJJ and Counsel for the Respondent made concluding oral submissions. The Respondent maintained its opposition to the issue of a WWCCC to EJJ.

Written evidence

32. Each party filed written evidence as follows:

Applicant - EJJ

• Application filed 23 June 2020 – (A1)

• Bundle filed 22 December 2020 – (A2)

• Bundle filed 25 January 2021 - (A3)

Respondent

• Section 58 documents filed 20 April 2020 - (R1)

• Further documents filed 30 November 2020 - (R2)

EJJ’s Offending and evidence

33. The disqualifying offence with which the EJJ was charged and convicted involved the following matters. On 18 January 1997, the victim, and her husband, went to a birthday party at the home of a friend. EJJ was at the same party. During the night, the victim was taken home by her husband and she went to sleep. The victim’s husband returned to the party. In the early hours on 19 January 1997, EJJ, the victim’s husband and a friend went back to the victim’s home. At approximately 8.00 a.m. on 19 January 1997, EJJ wanted to use the toilet inside the victim and her husband’s home for a second time.

34. Whilst walking towards the toilet, the victim’s bedroom door was open, with the victim asleep in her bed. EJJ went into the victim’s room and sexually assaulted her. Whilst inside the home, the victim’s husband decided to play a trick on EJJ. The trick involved placing a firework into the drainpipe leading to the toilet. The intent of this trick was to cause a loud bang scaring a person using the toilet.

35. After the firework was lit and placed into the drainpipe, and just prior to it going off, the victim woke in her bed to feel EJJ lying on top of her penetrating her vagina with his penis. When the firework went off EJJ allegedly got up quickly and left the room still pulling his pants up. He went back outside and joined the victim’s husband where they laughed about the firework.

36. Shortly thereafter, the victim appeared at the backdoor of the home in a distressed state. She asked her husband to get rid of them, referring to EJJ and the friend.

37. The victim underwent forensic testing at the Wollongong Hospital. EJJ was interviewed by officers of the NSW Police Force. He initially said to the police that he was not inside the house and was sitting outside. However, he agreed that he did go inside to use the toilet and said he was sitting on the toilet when he heard the bang. EJJ denied going into any of the other rooms of the home.

38. Prior to DNA testing revealing that the semen found in the victim’s vagina could have come from EJJ, and not her husband, EJJ denied having sexual intercourse with the victim.

39. On 9 April 1997, when attending the Wollongong Police Station, EJJ was asked whether he had had sexual intercourse with the victim. He responded ‘Not that I know of. I don’t remember it.’

40. EJJ ultimately pleaded guilty to the subject offence. On 12 May 1998 he was convicted in the terms as set out above.

41. Counsel for the Respondent cross-examined EJJ in relation to the disqualifying offence, particularly on the basis that he had then minimised the seriousness of his offending and continues to do so to date. It is without doubt that at the time EJJ committed the disqualifying offence he was a person who was relatively young, he had consumed excessive amounts of alcohol and was unable to control his sexual urges with the aim of achieving personal sexual gratification at the expense of his victim. In part of the cross-examination a question was asked by Counsel for the Respondent to the effect: ‘I’m suggesting that in 2015 you were attempting to minimise the facts in that case’ referring to the evidence he gave before this Tribunal in (BPT v Children’s Guardian) to which he replied ‘No, it was a one off incident, I was 28, a bachelor, a night of high partying. I had not stood before a court before. I have made every effort since then not to place myself in a similar situation’.

42. EJJ conceded in cross-examination that it was not an accident he entered the victim’s room, knowing that he had passed the room before and that went into the house a second time with the intent to have sexual intercourse with the victim.

43. EJJ referred to his unacceptable behaviour as a 28 year old a number of times during his evidence. He accepted that his conduct would have had a significant effect on the victim and others. It was evident to us that at or about the age of 28 years, EJJ was more than likely a motivated sexual predator fuelled by alcohol. Sexual assault against any person, particularly women, is unacceptable and criminal behaviour, whether fuelled by alcohol or other influences. Be that as it may, and having considered EJJ’s conduct for which he has been duly punished, we find as at the date of this hearing that he demonstrates insight into the seriousness of his offending and the effects it had on his victim.

44. The Respondent has also referred to an incident which occurred in 1996 where EJJ was alleged to have been masturbating in a motor vehicle when a group of schoolgirls walked past him. EJJ denies that he was masturbating in his motor vehicle. He said he was working in the location as alleged by the schoolgirls delivering a computer to clients. A group of mixed gender school children were sitting on the road where he needed to park. He sounded his horn and the children gestured rudely towards EJJ and swore at him. EJJ said he returned the profanities and gestures and then moved off. After being questioned later by NSW Police, and EJJ showing them an invoice which had the client’s address and signature, no further action was taken.

45. Despite cross-examination with respect to these allegations, we were not satisfied that we could make a positive finding that the incident took place. We accept the EJJ’s evidence in this regard and make a finding, on the balance of probabilities, that EJJ was not masturbating as alleged.

46. On 11 December 1999, it was alleged that EJJ was masturbating on the Gold Coast about 5 metres in front of a female person and her 4 children. The mother of the children described EJJ as having no shirt on and his board shorts around his ankles. He was masturbating with his right hand. The victim allegedly started her car and turned the motor vehicle lights on where EJJ remained standing whilst masturbating. The victim drove a short distance where she met an acquaintance. The acquaintance and a security guard returned to the area where EJJ was and asked for him to stop but he ran towards the beach. EJJ was detained by the security guard and police were called. EJJ denied being the person identified by the victim and said he was on the beach because he was going for a swim, albeit having no costume and towel with him. EJJ was given a notice to appear in a Queensland Court. On 19 January 2000, he pleaded guilty to wilful exposure and was convicted and fined $155, with 5 days imprisonment in default and given 1 month to pay.

47. EJJ provided a version of events which is set out in his Affidavit sworn 11 March 2015 and was filed in the BPT proceedings. EJJ states that he was holidaying at Surfers Paradise with his wife and stepson and at about 11.00 p.m. whilst on his way to his motel he was ‘busting to go to the toilet’. He says he stepped into an unlit walkway and urinated against the bushes and the next second he heard yelling and screaming and was grabbed by a security guard.

48. In cross-examination EJJ said he believed he was pleading guilty to a charge of urinating. However, he understands now that he in fact pleaded guilty to a charge of wilful exposure. EJJ denied that he was masturbating in public. He also denied it was his intention to obtain sexual gratification by showing his penis to women and children. In the absence of evidence of either the victim, the security guard or the victim’s acquaintance, it is impossible for the Tribunal to make a positive finding that EJJ was indeed masturbating as alleged. EJJ has previously given different versions of why he was on the walkway and what he was doing at the beach that night. He said was ‘busting to go to the toilet’ and that he had decided to ‘go for a quick swim’.

33. In his submissions EJJ said it makes little sense that he would be standing in front of a parked car that was empty, waiting for the occupants to return and turn on the motor vehicle lights so he could masturbate in front of them.

34. In our minds it would be unusual for a member of the public to mistake a person urinating as opposed to masturbating. However, it may not be impossible. Further, we note that the event took place late at night and there is a higher possibility that the victim may have misinterpreted EJJ’s behaviour.

35. On the balance of probabilities, we find that it was more likely than not that the EJJ was urinating rather than masturbating. Although, what is abundantly clear based on the evidence before us, is that EJJ was exposing his penis to the wider community, which is itself a criminal act. We must take this event into consideration when determining this matter.

36. The evidence reveals that since the offence in Queensland which took place in 1999, EJJ has not come to the attention of the police.

37. Despite a robust cross-examination of EJJ, it did not reveal any matter which in our view would count against him. We find that he is a truthful witness.

EJJ’s Submissions

54. EJJ’s submissions in our view demonstrate his insight into the seriousness of his offending and the effect it has had on the victim and other related persons. Since the refusal to grant EJJ with a WWCCC in 2015, and since the 1999 Surfers Paradise incident, EJJ has not come to the attention of any authorities with respect to conduct which may be described as disentitling to hold a WWCCC.

55. The evidence reveals that EJJ remains in a stable relationship. He is actively involved in Lifesaving New South Wales and provided various references and certificates of commendation with respect to other public service and community related volunteer positions.

Respondent’s Submissions

56. The Respondent’s written submissions set out briefly the statutory framework and applicable principles.

57. It is submitted that the evidence reveals that EJJ has minimised the sexual assault offence both in the 2015 hearing before this Tribunal and now. The Respondent contends that EJJ in his written material attempts to do so by alleging the victim was drunk, she was his friend, they were naked in the spa at the party and suggesting complicity in a way that she was in some way responsible for the assault.

58. The Respondent submits that the three sexual related offences are a pattern which would cause the Tribunal to find that EJJ is a risk of sexual offending. However, it was conceded by counsel for the Respondent that 20 years has passed without EJJ further offending. In that regard it was submitted by counsel for the Respondent that the question for the Tribunal is whether sufficient time has passed so as to negate the serious risk which occurred from 1999. Counsel submitted that the cluster of offences alleged to have occurred involving EJJ in the late 1990s is of such concern that, despite the passage of time, the Tribunal should make a further finding that EJJ remains a real and not fanciful risk to the safety and wellbeing of children.

59. The Respondent submitted that, in the absence of EJJ coming to terms with the seriousness of his offending and the absence of evidence of diminishing of alcohol consumption, the Tribunal cannot be satisfied that the onus under s28 of the Act to rebut the presumption that he is a risk to the safety of children would lead to a finding that the decision of the Respondent should be affirmed.

Section 30 (1) considerations

60. 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 to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

61. The disqualifying offence, being a sexual assault, is indeed a very serious offence. It involved an adult female who was the victim of predatory behaviour by EJJ for his own sexual gratification. EJJ served a prison sentence of 3 years as punishment for his offending.

62. We have set out our findings with respect to the other two alleged sexual offences.

63. The offence with which EJJ was convicted, being wilful exposure, is in itself serious. That offence, about which we have not made a positive finding relating to masturbation, did involve him exposing his penis to the wider community, albeit late in the evening when one would expect there to be no person witnessing his behaviour. However, that indeed was not the case and at least EJJ was seen exposing his penis in front of a mother and her children.

64. We note that the disqualifying offence does not involve children.

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

65. The disqualifying offence occurred in 1997. EJJ was charged with a further sexual related offence in 1999 whilst in Surfers Paradise in Queensland. Since that time he has not been charged with any other offence.

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

66. EJJ was 28 years old at the time of the disqualifying offence.

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

67. The victim was 32 years of age at the time of the disqualifying offence.

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

68. EJJ was approximately 4 years younger than the victim.

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

69. The victim was not a child.

(g) The person's present age.

70. EJJ is currently 52 years of age.

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

71. We have set out our findings in relation to the two other alleged events occurring in March 1996 and December 1999. In relation to the 1999 offence, EJJ pleaded guilty to wilful exposure and was convicted as set out above.

72. The Respondent also includes in the written submissions an incident which occurred on 5 August 2014, where EJJ allegedly lost his temper and threatened two people who asked for a refund in his computer store. The victims decided not to press charges. We give this little, if any, weight.

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

73. In the documents filed by the Respondent at p148 is a report of Michelle Brunsman, Intern Psychologist at Mannus Correctional Centre. The report is dated 30 October 1998. The report finds that EJJ needed psychological counselling with a sex offender specialty therapist. On 12 February 1999, Ms Brunsman did not support EJJ’s request for day leave until he undertook appropriate counselling regarding his offence.

74. In the 2015 proceedings before this Tribunal, Dr Milic wrote two reports in relation to EJJ’s request for a WWCCC. The most recent report is dated 12 April 2015. It is not apparent in the report that Dr Milic questioned EJJ in terms of the 1997 and 1999 offences. His evidence in our view can only be given limited weight.

75. We have placed particular weight on the period of time since the disqualifying offence occurred and the 1999 offence in Queensland. Despite there being little expert evidence with respect to EJJ’s likelihood of repeating the offences with which he has been charged, the period of time elapsing since those offences in our view is important.

76. The Respondent submitted that there is a lack of evidence in terms of EJJ not undergoing any counselling concerning his consumption of alcohol. We note that when the disqualifying offence occurred EJJ was indeed intoxicated and this was referred to in sentencing remarks by the Presiding Judge. We accept EJJ’s evidence that he imbibes alcohol on a social basis and in our minds there is no evidence to find otherwise. In the result, there being a lack of evidence of EJJ undergoing counselling in relation to his consumption of alcohol is given limited weight. However, there is also no evidence that EJJ’s consumption of alcohol has caused him to be the subject of any complaint, or, offence, similar to those in the late 1990’s.

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

77. Not applicable.

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

78. EJJ filed an amendment to his 2014 Affidavit dated 23 July 2020. He says that he understood the Magistrate accepted he was urinating in the bushes with respect to the offence that occurred on the Gold Coast. The Respondent submitted that the Magistrate must have disbelieved EJJ if he submitted that he was only urinating in public because the exposure would not have been wilful in those circumstances. We disagree. The relevant wording of the now repealed legislation is: ‘wilfully exposes his or her person in view of any person in any public place…’. The Magistrate may have found that EJJ was wilfully exposing his penis to urinate. Without the transcript of the sentencing hearing, it is impossible to make a positive finding in this regard.

79. We note the additional documents filed by EJJ, including those marked number 4, 8, 14, 15, 17 and 18.

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

80. Not applicable.

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

81. We have considered the Respondent’s recital of EJJ’s other alleged sexual advances to women without their consent in 1997. The passing of time since these allegations having been made, the current age of EJJ and his non offending for at least 20 years, and our acceptance that he has insight into his deplorable conduct as a young man, all weigh in his favour in this application.

Our findings

82. We are satisfied that EJJ has reversed the presumption that he is a real and appreciable risk to the safety of children. EJJ was clearly a young man, who, when under the influence of alcohol, exhibited predatory sexual behaviour towards a woman, which can never be excused. However, this Tribunal is not charged with an obligation to punish EJJ for his past behaviour. The criminal justice system assumes that responsibility. Indeed, EJJ has been punished for his unacceptable conduct.

83. After reviewing all of the evidence, and considering the safety, welfare and well-being of children and, in particular, protecting them from child abuse, we are not satisfied that EJJ should remain as a disqualified person for the purposes of this application and the disqualifying offence.

84. We are satisfied that EJJ is not a real and appreciable risk to the safety of children.

Section 30 (1A) consideration and findings

85. We are also required to consider s 30(1A) of the Act.

86. In our minds sufficient passage of time has passed between when those offences occurred to the current day. Indeed from 1999 and since the Tribunal last determined the matter in 2015, there have been no further reports of any incidences involving EJJ.

87. We find that a reasonable person knowing all the facts of the offences in 1997 and 1999 and the allegations in 1996 would allow his or her child to have direct contact with EJJ whilst unsupervised by another person.

88. We also find that it is in the public interest for EJJ to pursue community related volunteer positions such as an education role within Surf Lifesaving New South Wales.

Orders

1. Declare EJJ is not a disqualified person in relation to a conviction of sexual intercourse without consent (s61I of the Crimes Act 1900) on 12 May 1998 at Wollongong for the purposes of the Child Protection (Working with Children) Act 2012.

2. The decision of the Children’s Guardian of 3 June 2020 is set aside.

3. The Children’s Guardian is to grant EJJ a Working with Children Check Clearance forthwith.

**********

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: 30 March 2021