EMP v Children's Guardian - [2020] NSWCATAD 301

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EMP v Children’s Guardian [2020] NSWCATAD 301
Hearing dates: 3 December 2020
Date of orders: 9 December 2020
Decision date: 09 December 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
Decision:
(1) The application for a stay or interim order 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 (NSW). 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- review under section 27 Child Protection (Working with Children) Act 2012 (NSW)-where cancellation of working with children check clearance - where application for a stay of the decision while review application is to be heard later – where paramount concern is protecting children from child abuse – whether to grant an interim stay under section 60, 61, 62 Administrative Decisions Review Act 1997 (NSW) - where charge of Aggravated indecent assault victim under authority of offender and acquittal – where stay refused.

Legislation Cited:
Administrative Decisions Review Act 1997(NSW)
Child Protection (Offenders Registration) Act 2000 (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Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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)
Commonwealth Criminal Code (1995) (Cth)
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
DNQ v Children’s Guardian [2018] NSWCATAD 188
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
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

Texts Cited:
None Cited

Category: Procedural and other rulings
Parties: EMP (Applicant)
Children’s Guardian (Respondent)
Representation: Solicitors:
Proctor Phair Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2020/00331014
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 (NSW). 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

This is an application for stay of a decision, and an application filed on 19 November 2020 seeking a review of the same decision of the Children’s Guardian, under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The Children’s Guardian informed the applicant, who is referred to as “EMP” in these proceedings, on 13 November 2020 that due to an adverse risk assessment conducted as a result of the fact that he was charged with “aggravated indecent assault-victim under the authority of offender” and subsequently acquitted, and the subject of a work place disciplinary investigation he was not to be granted a Working with Children Check Clearance. The applicant was found not guilty of the charged offence in late 2018 by the Local Court after a hearing.
An order was made at the interim 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 any victim. Because a victim will be able to 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).
This step may be reviewed later under section 64(3) of the Civil and Administrative Tribunal Act 2013 (NSW) but for the present it is considered appropriate and desirable to maintain this prohibition on publication.
The applicant was advised that he was not receiving a Working With Children Check Clearance (WWCCC) on 13 November 2020 and the application for a review under section 27 of the Act was filed within the time permitted.
Orders and directions were made on 3 December 2020 to prepare the matter for hearing. The stay application was also heard on 3 December 2020. The applicant was legally represented. Directions were made and the final hearing of the application for review was listed for determination on 22 March 2021. The interim stay decision was reserved after hearing submissions and receiving documentary evidence.
The respondent opposes the stay application.
This is an application relying upon section 60 of the Administrative Decisions Review Act 1997 (NSW) and the applicant is seeking a stay of the operation of the decision made by the Children’s Guardian.
The provisions of section 60 of the Administrative Decisions Review Act are as follows:

60 Operation and implementation of decisions pending applications for administrative review

Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.
On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.
The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:
(a)    the interests of any persons who may be affected by the determination of the application, and
(b)    any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c)    the public interest.
While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
1. In other words, the application for review does not act as a stay of the decision under review. It is to be observed that the discretionary power is restricted by the operation of section 61 of the Administrative Decisions Review Act and that restriction has been satisfied in this matter, because the "administrator who made the decision" is represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review.
2. The issue the Tribunal is to ultimately decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. That decision in this matter will not be made until the final hearing of the application. That hearing date, as stated before, has now been set for 22 March 2021.
3. 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.
4. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children’s Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.
5. The ultimate conclusion of the Tribunal on this stay application is that the applicant should not obtain a stay of the decision that the applicant is not entitled to a Working With Children Check Clearance. The reasons for the refusal of the stay application decision are set out in sufficient detail in the following paragraphs.

The material relied upon

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

Application for stay or interim order dated 19 November 2020 and filed the same date;

Administrative Review application form filed 19 November 2020 attaching the letter dated 13 November 2020 from the Children’s Guardian refusing the applicant’s application for a working with children check clearance;

Statement by the applicant dated 30 November 2020 attaching a letter from his employer dated 23 October 2019 recording the outcome of disciplinary findings, and proposed action. It is noted that the letter records findings that some allegations were dismissed, others were sustained but not amounting to misconduct, and others were sustained amounting to misconduct.

Documents relied upon by the respondent in relation to the hearing of the interim order received by the Tribunal on 2 December 2020;

Written Submissions on behalf of the respondent dated 2 December 2020.

Written Submissions on behalf of the applicant dated 3 December 2020.

The applicant’s solicitor gave oral submissions. The submissions have been considered even if reference is not made to all of those matters in these reasons. The respondent’s counsel also gave oral submissions.
This is an interim application and only matters which are agreed or established facts form part of the factual basis for the decision. No contested factual matters were able to be appropriately tested.

Legislative provisions

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 applicant is employed as a teacher and education is the child related employment sector.
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 decided 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.
The Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) amendments to the Act commenced on 25 October 2016. This review clearly commenced after the commencement of those amendments.
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 amendments to subsections of section 30 of the Act both commenced on 1 June 2018. Section 5B of the Act was inserted and commenced at the same time.
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 order after determining the review application: 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 now poses a risk to the safety of children. This determination is also consistent with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214.
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) of the Act.
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.
There is no relevant definition of “child abuse” contained in the Act.
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”

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.”

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).
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."

"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
"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 which applies in relation to the applicant. The applicant was not convicted of the offence with which he was charged or any other offence referred to in Schedule 1 and Schedule 2 of the Act.
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.
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 charged offence of which he was acquitted.
A person is not permitted to engage in “child-related work” unless the person holds a Working With Children Check Clearance: see section 8 of the Act. The applicant wishes to work with children as their teacher. That is why he requires a clearance.

Standard of Proof and Onus of Proof

The standard of proof applied in this application 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].

Untested allegations and the manner in which the Tribunal is to approach them has 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 trial in the Local Court. Those allegations have been tested in that Court and determination made on the criminal standard of proof.
Any finding of fact in the Tribunal will be determined upon the civil onus of proof which is the balance of probabilities. Because of the limited nature of the interim application for a stay the Tribunal will not be able to make a concluded finding of fact on contested factual matters. The Tribunal will consider whether there are any agreed facts and may need to make some prediction as to the likely findings or at least some consideration of the types of issues to be determined at the final hearing.
The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted:

“[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36].

[72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.

…

[74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis”) at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button’s decision and orders in Bronze Wing.
The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil onus to determining a factual matter: CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].
The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.
Because the applicant is seeking a stay there are some general principles which apply to that type of application which are set out later in these reasons. The applicant bears an onus to satisfy the Tribunal that a stay ought to be granted. That is different to the onus in relation to the hearing of the administrative review application.
Pursuant to section 15 of the Act the Children’s Guardian may conduct a risk assessment of the applicant. The section relevantly provides as follows:

“15 Assessment of applicants and holders

The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.
The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.
Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder....”
1. The applicant was subject to a risk assessment partly due to the charge he faced and of which he was acquitted. Acquittal on a criminal charge does not prevent the Tribunal from finding that something occurred on the balance of probabilities. This will be explained in more detail with reference to the authorities which the Tribunal is required to follow.
2. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
3. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
4. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative but 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.
5. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD 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.
6. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, 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] NSWIRComm 101 at [130].
7. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "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 9, 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). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523. Section 5B of the Act now makes that clear.
8. The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often-cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“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.”

In this matter the Children’s Guardian came to the view recorded in paragraph [14] of the letter dated 13 November 2020 that:

While the Children’s Guardian is not satisfied EMP engaged in the alleged criminal conduct, the Children’s Guardian is not satisfied that the conduct did not occur. Considered together with the nature and seriousness of the allegations as well as his adverse workplace history, the available evidence suggests EMP poses a risk to the safety of children.

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. 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.
The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33]. It is not necessary to set out the reasoning behind the Tribunal’s determination in this decision.
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

In the following paragraph, the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.

The Issue

The applicant seeks that the operation of the decision of the Children’s Guardian to refuse to grant to him a Working With Children Check Clearance should be delayed until after a further final hearing. The Tribunal has to determine whether it is desirable to do so after taking into account:

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

any submission made by or on behalf of the administrator who made the decision to which the application relates, and

the public interest.

Additionally, it is accepted that conditions may usually be imposed while granting a stay for a specified period of time, or if no period is specified until the decision of the Tribunal on the application takes effect: section 62 Administrative Decisions Review Act; Elgammal v Director General, Department of Transport [1999] NSWADT 82. That is possible only if the relevant regulatory legislative provisions permit conditions to be imposed on the grant of a clearance.
In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302, the Court of Appeal (Basten JA, Campbell JA, and Handley AJA), Basten JA who was in the plurality stated at [21] in relation to section 60 Administrative Decisions Review Act:

A stay is commonly granted to preserve the status quo or the subject matter of an appeal (or review), pending a final determination of the appeal. It is granted in the course of an appeal (or review) as a step in the process of determining the subject matter of the appeal (or review). Interlocutory orders of a kind which might not form part of the final determination are regularly made in the course of proceedings, including decisions with respect to the admission or rejection of evidence, the granting of adjournments, and numerous other matters. The material upon which the Commissioner based the decision under review might well be relevant to an interlocutory decision sought under s 60. The purpose of s 29(3) is to maintain the non-disclosure of the existence and content of identified information. To limit the purposes for which the protection was available, so as to exclude some interlocutory steps, would tend to subvert the purpose of the provision.

Generally, in civil litigation, a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: Polini v Gray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances whether on conditions or otherwise.
It has also been said 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].
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].
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."

There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].
The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.
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 it is not Court’s task “to conduct a preliminary hearing”. In determining whether there is “a serious question to be tried” when considering an interlocutory injunction, it 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 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 terms 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.

A decision the subject of a section 27 review can be stayed by reference to section 60 of the Administrative Decisions Review Act. The provisions of section 30 (1) of the Act “must” be applied in “determining an application” under Part 4 of the Act. This stay application is not determining or bringing to an end or concluding the application for review. However, in order to consider whether it is desirable to stay that decision, it is relevant to consider, even if briefly, the matters in section 30(1) of the Act. This is not a preliminary hearing. Such a course is consistent with the prior extract from AVS Group of Companies Pty Ltd v Commissioner of Police.
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 review under section 27. The Children's Guardian in determining the risk assessment "may consider" matters set out in sub sections 15 (4) and 15 (4A) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) and 30(1A) of the Act. The Children’s Guardian has already performed an assessment pursuant to section 15 of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.
Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act relevantly provides as follows:

“…(4) In making an assessment, the Children's Guardian may consider the following--

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

(d) the age of each victim of any relevant offence or conduct at the time it 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 or of any other matters that caused the assessment 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 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.

(4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that--

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

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

In making an assessment, the Children's Guardian may consider the
1. Section 30 of the Act relevantly provides as follows:

“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.

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.”

The stay provision in subsection 2 is not applicable to this matter because it is a section 27 of the Act application.
Each of the following subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under the subheadings reciting the required considerations under the Act.
Also, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because, in particular, sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.
The considerations which are required to be taken into account on the stay application are those set out in section 60 (3) of the Administrative Decisions Review Act. Accordingly, it is the Tribunal’s determination that the Tribunal is required to consider those matters set out in section 30 (1) of the Act in order to assess whether it is desirable to make an order under section 60 of the Administrative Decisions Review Act.
The Tribunal is cautious in its consideration of the evidence and will not reach a concluded view until after hearing further evidence, including cross examination and submissions in the final hearing, unless facts are admitted or clearly not in contest. The findings in the criminal proceedings will also be taken into account.

The Issues

The Tribunal has previously considered the grant of a stay in section 27 review 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.”

The discussion which follows is repetitive of matters set out in other reasons for decision 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 principles applied to this decision are therefore set out in these reasons.

Other matters

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.

Consideration of the evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act. 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 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

The applicant faced a charge where it was alleged he squeezed the bottom of a female year 8 student on one occasion and, on another, rubbed her leg from her knee to mid thigh. The applicant was found not guilty on the criminal standard of proof.
The applicant also has an adverse history in the workplace with the Department of Education that spans 18 years. The conduct which was the subject of these allegations included derogatory comments to male and female students, making sexual comments to female students, allegations of indecent touching of a female year 8 student. The applicant has a significant workplace history of making inappropriate comments to students despite directions and other remedial actions. This increases the overall seriousness of a pattern of behaviour which, despite interventions, the applicant has not been able to control.

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

The circumstances leading to the charge occurred in 2018 and were disposed of in November 2018 in the Local Court. The matters immediately giving rise to the risk assessment occurred relatively recently.
The applicant appears to either deny his inappropriate conduct as found by the internal investigation by the Department of Education, or defers blame to the child complainant(s).
The applicant has provided a number of positive references from former colleagues. The most recent principal expressed an opinion based on his observations of the applicant’s conduct over 5 years, that the applicant is not a suitable person to work with children.
The applicant is said to have difficulties maintaining positive relationships with students. The applicant is said to have a tendency to blame others and defers responsibilities to others or his own actions. The Tribunal is unable to gauge the accuracy of these assessments on an interim level, however, they are concerning statements from persons without an obvious personal interest in the outcome of this application. Of additional concern is the fact that these are not isolated incidents but a pattern of behaviour towards and in the presence of children throughout his teaching career.

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

The applicant was aged 55 years at the time of the alleged offence for which he was charged. The applicant is presently aged 57 years.

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

The year 8 female child alleged there were a number of occasions where the applicant inappropriately touched her. The child was aged 13 or 14. The child was therefore under the age of 16. This makes the allegation more serious given the applicant’s position of trust.
The child was a student of the applicant and particularly vulnerable as well as in a position of power imbalance. This is the circumstance of aggravation which was included in the charges.

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

The difference in age between the applicant and the complainant was about 50 years.

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

The applicant knew that his students were children.

The person’s present age

The applicant is currently aged 57 years.

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

The applicant has recorded in his history an offence of stealing dealt with in the Children’s Court in 1981 when the applicant was aged 17.
The applicant denies being a risk to the safety of children. The applicant has consulted Dr Sowden, clinical and forensic psychologist. The psychologist has made recommendations for further treatment to address the applicant’s interpersonal engagement with students, enhancing his empathy and insight into those who have made allegations about him. There is no evidence this therapy has in fact yet been completed.
Students have a right to a safe physical and emotional environment and teachers are expected to behave in ways that promote the safety, welfare and well-being of students. There is alleged an absence of any remedial action taken by the applicant to address his inappropriate conduct over the past 18 years.

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

The applicant has provided minimal evidence of his ability to change his behaviours so that he does not pose a risk to the safety of children physically and in terms of their emotional attachments and capacities assuming that he needs to do so in order to alleviate concerns expressed about his behaviours.
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.
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. The applicant has not at this stage of the application for review provided any evidence as to his motivations for his past behaviour in his workplace at the school.
As a result of the limited evidence on this application, the Tribunal cannot be satisfied that there is unlikely to be a repetition of the behaviours which have been highlighted in the workplace investigation and which appear to have prompted the criminal charges.

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

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

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

The applicant has provided limited information in relation to the application which is referred to elsewhere in these reasons.
There will need to be further information provided for the final hearing.

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

The applicant’s criminal history is previously identified. Beyond that information there is no identification of information falling into this category at this stage of the proceedings.

Any other matters that the Children’s Guardian considers necessary

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

The grant of a clearance or the stay of its refusal is important to the applicant. The applicant submits that he has been a teacher who has been involved with children over many years and does not pose a risk to them. The applicant previously had a clearance granted in 2016. The clearance was cancelled on 1 June 2018 due to the criminal charges. The criminal charges were dismissed on 16 November 2018 following a hearing.
The applicant was also assessed by his employer who found a number of allegations to be sustained including one allegation of sexual misconduct.
The applicant’s students have an interest to receive education without being harassed or assaulted.
The applicant did provide any clear evidence from his employer as to his employment position if there is no stay granted. The employer has written a letter which indicates that the applicant will be dismissed if he is unable to obtain a WWCCC. It would appear that because his employment has not yet been terminated, the Department of Education is awaiting the outcome of these proceedings before proceeding with termination, in the event that a clearance is not granted.
The applicant submitted that the applicant will be imminently dismissed and the application for review will be nugatory if a stay is not granted. This does not appear to be correct because he has not yet been terminated and the application for a clearance was not successful. This is a review of that decision. It may be that the decision is made to grant a clearance. What is clear is that the applicant remains employed in alternative duties and is currently receiving a salary. This is occurring despite the negative outcome of his application to the Children’s Guardian.
The applicant has been placed by his employer on alternative duties. The respondent submits that dismissal prior to the conclusion of these proceedings would be inconsistent with part 4B and section 93L of the Teaching Service Act 1980. The fact the applicant is receiving a salary and has been placed on alternative duties is likely to continue while these proceedings for administrative review are heard.

Any submission made by or on behalf of the administrator who made the decision to which the application relates

The Children’s Guardian made submissions opposing the stay order sought.
The Children’s Guardian identified that there is a real question raised in relation to the safety of children posed by the applicant. It is also submitted that the applicant bears the onus of satisfying the Tribunal that the operation of the orders should be stayed. Those submissions may be accepted.

The public interest

When assessing the public interest it is relevant to have regard to the nature and seriousness of the offence. This was a serious offence. 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 and poses a risk of sexual harm in addition to any other risk posed by his inappropriate behaviour.
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. However, the public interest takes into account other matters. The Tribunal considers that the public interest refers to the interest of a public which is fully informed of all the facts; not a public which is informed as to part of the facts or misinformed as to the facts. It is in the public interest that the public have confidence in members of the teaching profession.
The public interest has been considered by the Tribunal in a different context, in relation to section 30 of the Act, but that consideration is of interest in the context of the public interest referred to in section 60(3)(c) of the Administrative Decisions Review Act and for the purpose of the stay application. In CLD v Children's Guardian [2017] NSWCATAD 134 the Tribunal referred to and adopted the discussion of the public interest in 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] where that court referred to the following matters:

[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[[2009] HCA 51]

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.[Citing O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); see also Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, [31]-[32] (French CJ), [69] (Gummow, Heydon, Crennan, Kiefel and Bell JJ); Osland v Secretary Department of Justice No 2 [2010] HCA 24; (2010) 241 CLR 320, [13].]

[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’.[ Act, s 1(1).] 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’.[ Ibid.]

[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.[ Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-42, 55; Foster v Minister for Customs [2000] HCA 38; (2000) 200 CLR 442, 452 [22]-[23].]

[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’ [Outline of submissions on behalf of the Secretary in the case of LMB, [13]] 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.[ Cf Director of Public Transport v XJF [2011] VSCA 302, [58]-[59] (Maxwell P with whom Mandie and Harper JJA agreed).] 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.

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]]

The public interest in this matter is better served by not granting a stay of the refusal to grant the applicant a clearance. It may be that with further evidence that assessment is modified. However, at this juncture and based on the material before the Tribunal a stay of the refusal would not advance the protection of children from a relapse or impugned behaviour by the applicant.

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

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”.
The applicant has worked with children for most of his working life. However, the Tribunal has the function of assessing risk posed by the applicant to the safety of children arising from the applicant’s whole history and his recent history is entitled to be given weight. The balanced assessment of risk requires information from a variety of sources. The information before the Tribunal at this point in time does not allow a concluded assessment of risk. 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.

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 the applicant to work with children on an interim basis.
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

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.
While there is no 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. The behaviour of the applicant raises significant issues about the applicant’s ability to maintain appropriate behavioural standards and honestly and diligently confront his issues so that he does not pose a risk to children.
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.
A stay application, 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.
If the evidence remains as it is there is a probability that the applicant will be able to provide persuasive argument that he is not a risk to the safety of children.
There is currently only the applicant’s assertion that he will suffer irreparable injury if the stay is not granted. There is no cogent evidence from his employer about that matter.
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.
The alleged behaviour, if repeated, would do significant harm to any victims especially children who will be present. The paramount principle under the Act includes protection of children from suffering abuse.
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 also the conclusion in this matter.
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.

Conclusion

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

The order of the Tribunal is that:

The application for a stay or interim order is refused and dismissed.

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 (NSW). 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

**********

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: 09 December 2020

Medium Neutral Citation:	EMP v Children’s Guardian [2020] NSWCATAD 301
Hearing dates:	3 December 2020
Date of orders:	9 December 2020
Decision date:	09 December 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	(1) The application for a stay or interim order 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 (NSW). 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- review under section 27 Child Protection (Working with Children) Act 2012 (NSW)-where cancellation of working with children check clearance - where application for a stay of the decision while review application is to be heard later – where paramount concern is protecting children from child abuse – whether to grant an interim stay under section 60, 61, 62 Administrative Decisions Review Act 1997 (NSW) - where charge of Aggravated indecent assault victim under authority of offender and acquittal – where stay refused.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Offenders Registration) Act 2000 (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) Commonwealth Criminal Code (1995) (Cth) 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 DNQ v Children’s Guardian [2018] NSWCATAD 188 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 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
Texts Cited:	None Cited
Category:	Procedural and other rulings
Parties:	EMP (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: Proctor Phair Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2020/00331014
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 (NSW). 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.