EPQ v Children's Guardian

[2022] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EPQ v Children’s Guardian [2022] NSWCATAD 129

Hearing dates:

26 July 2021

Date of orders:

21 April 2022

Decision date:

21 April 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member
E Hayes, General Member

Decision:

(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction, in October 2003, of three offences of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW).

(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a working with children check clearance.

Catchwords:

ADMISTRATIVE LAW – refusal of a working with children check clearance – disqualified person seeking an enabling order – 2001 disqualifying offence aggravated with an act of indecency - s 61M(1) of the Crimes Act 1900 NSW

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523

BLM v NSW Office of Children’s Guardian [2015] NSWCATAD 4

EFH v Children’s Guardian [2020] NSWCATAD 256

Category:

Principal judgment

Parties:

EPQ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
I Wallach (Applicant)
R J Pietriche (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00073416

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

1. The applicant is a ‘disqualified person’ under s 18(1) of the Child Protection (Working with Children) Act 2015 (NSW) (WWC Act). He is a ‘disqualified person’ because, in 2003 he was convicted of an offence that is prescribed in cl 1(1)(e) of Sch 2 of that Act a ‘disqualifying offence’.

2. On 9 February 2021, the applicant made an application to the respondent seeking the grant of a working with children check clearance (a clearance): WWC Act s 13. On 17 February 2021, the respondent determined to refuse his application, as she was required to do under s 18(1) of the WWC Act.

3. On 15 March 2021, the applicant lodged this application with the Tribunal seeking:

1. an order (i.e. an enabling order), under s 28(1) of the WWC Act, that he not to be treated as a ‘disqualified person’ for the purpose of that Act in respect of his 2003 convictions; and

2. an order that he be granted a clearance.

4. On 25 March 2021, the Tribunal made a non-publication order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)

5. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant’s application.

6. The respondent, the Children’s Guardian, neither opposes nor consents to the making of the orders sought.

7. For the reasons that follow, we have decided to make the orders sought.

Background

8. The applicant is 69 years of age with an interest in psychology, which he has studied over a number of years. He has also worked as a volunteer for a number of charitable organisations providing care for teenagers and young adults with psychological disabilities or special needs.

9. In late June 2003, a jury, in the District Court of New South Wales, found the applicant guilty of three counts (charges) of aggravated indecent assault under s 61M(1) of the Crimes Act 1900 (NSW). In October 2003, the applicant was sentenced to two and a half years imprisonment in regard to each offence. The Court ordered that these terms of imprisonment were to be served concurrently by way of periodic detention. The applicant appealed his conviction to the NSW Court of Appeal. That appeal was dismissed in early 2005.

10. The applicant’s offending occurred in 2001 when he was 49 years of age. The victim of his offending was a 22 year-old woman who had a mental age of a 10-12 year old.

11. We have dealt with the applicant’s offending in more detail below.

12. In September 2005, the then Psychologist Tribunal, cancelled the applicant’s registration as a psychologist and made an order that he not apply for re-registration before 17 December 2009. This registration was based on the charges laid against the applicant in 2005.

Relevant legislative provisions in the WWC Act

13. The objects of the WWC Act are to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have a working with children check clearance: see WWC Act, ss 3, 8 and 9.

14. The paramount consideration in the operation of the WWC Act is the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse’: WWC Act, s 4.

15. Child-related work is broadly defined in ss 6 and 7 of the WWC Act and it includes working as an unpaid volunteer in child-related work.

16. It is an offence for a person to engage in child related work without having applied for a clearance or having been granted a clearance: WWC Act, s 8. It is also an offence for an employer to engage a person to undertake child related work without that person having applied for or having been granted a WWC clearance: WWC Act, s 9.

17. A WWC clearance is not granted for a specific category of child-related work. Once granted, it is a clearance for any child-related work: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 (BKE) at [27].

18. Section 18 of the WWC Act sets out how the respondent is to determine an application for a clearance. That section relevantly provides as follows:

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)  …

(2)  The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3)  The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

19. As we have already noted, the respondent, as she was required to do, refused the applicant’s application for a clearance because he was a disqualified person by reason of his 2003 conviction of a disqualifying offence: WWC Act, s 18(1).

20. The term ‘risk to the safety of children’ is defined in s 5B of the WWC Act as follows:

5B   Meaning of “risk to the safety of children”

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

21. As we have already noted, s 28 of the WWC Act makes provision for a ‘disqualified person’ to bring an application to for an enabling order. That section relevantly provides as follows:

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.

...

(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.

…

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

(7)  In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

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

(9)    (Repealed)

22. Division 5 of Part 3 of the WWC Act makes provision for the duration, cancellation and surrender of a clearance once granted.

23. In determining an application made under s 28 of the WWC Act, the Tribunal is required to undertake a risk assessment, at the time of the hearing, as to whether the applicant has discharged his/her onus to rebut the presumption that he/she poses a real and appreciable risk to the safety of children. In doing so, the Tribunal is required to have regard to the matters prescribed in s 30(1) of the WWC Act, which are 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.

24. In the event the Tribunal is satisfied that the applicant has discharged his onus, the Tribunal is not able to make the order sought unless it is also satisfied of the matters in s 30(1A) of the WWC Act. That section provides as follows:

(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.

Material before the Tribunal

25. At the hearing the applicant relied on the material contained in a large bundle of documents. The material included in that bundle includes:

1. a statement, dated 21 May 2021, made by the applicant in which he described his earlier years, the training and studies he has undertaken, his employment history, the conduct of which he was convicted in 2003, his weekend detention, his reflection on his offending conduct, the treatment he has undergone since his offending, his employment and volunteering activities and his reasons for applying for a clearance;

2. the transcript of the October 2003 remarks on sentence by the trial Judge;

3. various 2003 and 2005 reports of the applicant’s treating psychiatrists and psychologists, a 10 November 2020 report of Dr Ann Stephenson (Dr Stephenson), the applicant’s current treating psychiatrist, and two reports, dated December 2020 and June 2021, of Dr Christopher Lennings (Dr Lennings), psychologist. Dr Lennings reports are risk assessment of the applicant for the purpose of these proceedings; and

4. numerous references from family members and others who have known the applicant through his work, including his work as a volunteer.

26. The respondent tendered into evidence three bundles of documents:

1. included in the first bundle of documents was a copy of the applicant’s criminal history and a copy of the decision of the NSW Court of Appeal;

2. included in the second bundle of documents was a copy of letters that had been exchanged between the respondent’s and applicant’s legal representatives, copies of material provided to the respondent pursuant to s 31 of the WWC Act and copies of documents produced pursuant to summonses issued by the Tribunal, at the request of the respondent. The latter, included documents produced by the Commissioner of Police, NSW Police Force in relation to the applicant’s 2001 offending; and

3. included in the third bundle of documents were copies of documents produced pursuant to summonses issued by the Tribunal, at the request of the respondent. This included documents produced by Dr Stephenson and Dr Lennings.

27. At the hearing, which was an AVL hearing, the applicant gave evidence and was cross-examined by counsel for the respondent. Dr Lennings also gave evidence and was cross-examined.

28. Both parties provided written submissions prior to the hearing. These submissions were supplemented by oral submissions at the end of the hearing.

The disqualifying offences

29. The Police Facts Sheet notes that, at the time of the alleged offending, the applicant was undertaking a post graduate certificate in applied psychology and working as a carer and counsellor. He lived with his wife and child.

30. He was also employed by as a carer/social educator for a disability care Service. He had been working for that Service for about one year. His duties required him to stay overnight at the home where the victim and another disabled young man lived. They both required ongoing care due to their disabilities. The applicant was required to stay at the home every Wednesday night, from 2.00pm until 10.00am the following morning.

31. The applicant’s primary responsibility was to care for the victim’s housemate. However, he was also required to assist the victim in completing her tasks.

32. The applicant’s alleged offending occurred on a Wednesday in late April 2001. The Police Facts Sheet described the alleged offending as follows:

1. sometime that evening, while the applicant and the victim were sitting on a lounge in the living area, the applicant began rubbing the breasts of the victim. He kissed the victim and began rubbing the victim’s vagina with his hand. He pulled aside her underwear and began kissing her vagina. He also bit the victim’s nipples. The victim asked him to stop, but he did not do so and told the victim not to tell anyone.

2. sometime later that evening, the victim was lying in her bed and the applicant was seated beside her bed. He was wearing his boxer shorts. While seated beside the victim’s bed, the applicant took hold of the victim’s hand and put it onto his penis.

33. We note that the victim complained about the applicant’s conduct the following day.

34. A month later, the applicant attended the local police station where he participated in an electronically recorded interview with police. During that interview the applicant made full admission of the alleged offending. The Police Facts Sheet noted that the applicant had admitted to having committed similar acts for four to six weeks prior to the day in question. The applicant also acknowledged that what he did was wrong and that he was seeking sexual perpetrator counselling. He blamed a number of personal issues for his behaviour.

35. Following the interview, the applicant was charged with two offences of aggravated indecent assault, under s 61M(1) of the Crimes Act 1900, which, at the time, relevantly provided as follows:

61M   Aggravated indecent assault

(1)  Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.

(2) …

(3)  In this section, circumstances of aggravation means circumstances in which:

…

(c)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(d)  the alleged victim has a serious physical disability, or

(e)  the alleged victim has a serious intellectual disability.

36. A year later, on the same facts identified by Police in the abovementioned Facts Sheet, the NSW Director of Public Prosecution, withdrew the two charges that had been laid by police and replaced them with five new charges under s 61M(1).

37. The applicant pleaded not guilty to all charges and gave evidence at his trial.

38. In June 2003, the jury found the applicant not guilty of the first two charges, but found him guilty on the remaining three charges. That is, he was found guilty of the following alleged acts:

1. touching the victim on her vulva from outside her clothing;

2. kissing the victim’s vulva from the outside of her underpants; and

3. taking the victim’s hand and placing it on his penis from the outside of his underpants.

39. In his remarks on sentence the trial Judge noted that:

1. the applicant acknowledged that the first time he had acted inappropriately towards the victim was when she told him she was not feeling well and put her head on his shoulder, to which he responded by stroking her hair. The applicant had also acknowledged that towards the end of January and early February 2001, he did more than stroke the victim’s hair and would put his arms around the victim and ask if he could stroke her breasts. He said, if she said ‘no’ he would not do it;

2. there were a number of incidents that had occurred in the applicant’s personal life which had affected him and for which he sought psychiatric help;

3. the applicant had thought that the victim was consenting, but had subsequently learnt that the victim suffered from a crippling disorder. Nevertheless, the applicant had agreed in his evidence that he knew what he was doing was wrong – but he was unable to stop, as his compulsion had become an obsession;

4. the applicant was emotionally distressed following the death of a number of close friends and the deterioration of his marriage. He had stopped taking his medication and his obsessive thoughts and behaviour, which the medication controlled, had surfaced. He had however, acknowledged that his actions constituted the gravest breach of a duty of care;

5. the applicant had been well respected in a previous role where he was a residential teacher and carer; and

6. the applicant’s previous 1995 diagnoses of severe anxiety and compulsive disorder had been confirmed and that, since his offending, the applicant had sought extensive psychiatric and psychological intervention from his previous treating specialist and will require continuing medication and monitoring.

40. In sentencing the applicant, the Trial Judge found/accepted:

1. the applicant had no prior convictions;

2. the character evidence called on his behalf established ‘beyond a shadow of doubt’ that prior to his offending, the applicant was ‘not only a person of exemplary character but had been very actively involved for many years in activities designed to help people in need’;

3. the nature and extent of the applicant’s psychiatric disorder and the steps he had taken to ensure that he was unlikely to reoffend;

1. the remorse expressed by the applicant was genuine;

2. at the time of his offending, the applicant was unaware of the extent of the victim’s disability. This we note was not accepted by the Psychology Tribunal;

3. on the evidence before the Court, that the victim was not capable of consent was not proven beyond reasonable doubt. However, a finding that the victim did not consent was made and that the applicant was reckless as to whether she was consenting;

4. the offences of which the applicant was convicted were of a serious nature and not isolated; and

5. in sentencing the applicant, the trial Judge said: ‘In my view because of the offender’s prior good character, and his excellent prospects for rehabilitation, there are special circumstances’ that warranted the sentence of two and a half years imprisonment on each charge, to be served concurrently by way of periodic detention.

The applicant’s evidence

41. In our opinion the applicant’s evidence was comprehensive and frank. It was consistent with that described in the remarks on sentence by the trial Judge in regard to his 2001 offending. We have dealt with the applicant’s evidence in more detail below.

Has the applicant discharged his onus to rebut the presumption that he poses a real and appreciable risk to the safety of children?

42. For the reasons that follow, having regard to the material before the Tribunal and the s 30(1) factors, we were satisfied that the applicant has discharged his onus in rebutting the presumption that he posed a risk to the safety of children by reason of his disqualifying offence.

s 30(1)(a): the seriousness of the disqualifying offence

43. The applicant does not dispute the seriousness of his 2001 offending. However, he submits that his offending conduct did not involve physical force or physical violence as the touching was on top of the victim’s clothing. On this basis, the applicant submits that his offending should be categorised as being low range or middle of the range of seriousness.

44. We do not accept this submission, as any assault involves an element of violence. As pointed out by the respondent, the offence of indecent assault has been recognised by the Tribunal as an objectively serious offence: BLM v NSW Office of Children’s Guardian [2015] NSWCATAD 4 at [24] and EFH v Children’s Guardian [2020] NSWCATAD 256 at [115]. In this case it was an aggravated indecent assault due to the applicant’s position of trust and the victim’s vulnerability due to her intellectual disability.

45. The offending, as acknowledged by the applicant was not isolated and had been ongoing for some time prior the date the subject of the charges.

46. Hence, we find that the disqualifying offences of which the applicant was convicted were very serious. Nevertheless, we accept that, at the time of his offending, the applicant was suffering from a psychiatric disorder. He made full admissions, yet defended the charges. He explained in his evidence before the Tribunal that he had been advised that there was insufficient evidence to support some of these. Nevertheless we also accept that the applicant is remorseful for what he did and he has been so for some time.

S 30(1)(b): the period of time since the disqualifying offence

47. It has been 20 years since the commission of the applicant’s disqualifying offences.

S 30(1)(c): age of the applicant at the time of the disqualifying offence

48. The applicant was 49 years of age at the time of his disqualifying offence.

S 30(1)(d) and (e): the age and vulnerability of the victim and the age difference and relationship between the applicant and the victim

49. The victim was 22 years of age at the time of the applicant’s offending. However, due to her disabilities she had a mental age of between 10 and 12 years. Hence she was especially vulnerable.

50. The applicant was 51 years of age at the time and in a position of trust as her carer. He had been in that position for 12 months.

S 30(1)(f): whether the applicant knew, or could reasonably have known that the victim was a child

51. The victim was not a child. The evidence is that the applicant knew that the victim had an intellectual disability which required her to be in full time care. He had worked with such persons previously. While the trial Judge accepted the evidence of the applicant that he was unaware of the totality of the victim’s disability, in our view, the applicant was nevertheless aware that the victim had a compromised intellectual capacity which was more akin to that of a child.

S 30(1)(g) the applicant’s present age

52. At the time of the hearing, the applicant was 69 years of age.

S 30(1)(h): the seriousness of the applicant’s criminal history and the conduct of the applicant since the commission of his disqualifying offence

53. Other than the applicant’s 2001 offending, there is no evidence before the Tribunal to indicate that the applicant has come to the attention of police, prior to that offending, or subsequent thereto.

54. Nor is there any evidence of any complaints, involving children, having been made against the applicant during his various employed and voluntary roles that involved the care of or supervision of children.

55. The applicant has however, been the subject of complaints by fellow employees in 2014 and 2015. These incidents were identified by the applicant in his response to the respondent’s letter of 29 March 2021, in which she asked the applicant to provide information about complaints of this kind and other relevant matters. At the request of the respondent the Tribunal had also issued summonses to the applicant’s former employer, who had produced documents that supported what the applicant had said in his response to the respondent’s request for information.

56. In 2014, the applicant’s then supervisor noted three incidents in which the applicant had shown poor judgment in interposing himself in discussions between fellow employees which made them feel uncomfortable. The applicant was spoken to and admitted fault and apologised.

57. In 2015, the applicant was issued a warning about a work time sheet he had submitted and for which he had made a claim for an extra hour. The applicant’s supervisor accepted the applicant’s explanation as to how this had occurred – it was accepted that it was a mistake.

58. Since 2003, the applicant has been in full time employment with the same employer. He explained that he enjoys his role with that employer as well as his other voluntary roles and ongoing studies.

S 30(1)(i): the likelihood of any repetition by the applicant of the disqualifying offences and the impact on children of such repetition

59. In his evidence, the applicant acknowledged that he had strong sexual desires towards the victim, but was not concerned that he would behave in the same way today, because:

1. he is ashamed of what he did, as it was a breach of his professional responsibilities;

2. he understands the impact his offending conduct had on the victim;

3. he has become sensitised to his own thoughts through ongoing psychiatric and psychological treatment and medication which he understands he must maintain for his own ongoing overall wellbeing;

4. he would seek help immediately if in the same situation; and

5. he has made changes to his lifestyle and attitude by increasing his contact with family members, joining a men’s support group and participating in meditation and yoga at his local religious group.

60. In its 2005 decision, the Psychologist Tribunal found that the applicant had displayed little empathy or understanding for the victim. It was also not persuaded that the counselling and treatment the applicant had undergone at that time was sufficient to allow confidence in his ability to maintain the moral standards expected of a registered psychologist.

61. The applicant also relies on the more recent reports and oral evidence of Dr Lennings and the report of Dr Stephenson.

62. In his December 2020 report, at [34], Dr Lennings explained:

Risk assessment refers to attempting to structure ways of dealing with uncertainty. It is, by its nature an exercise in probability. There are two ways broad types of data used in risk assessment. The first of these data types refers to historical or static variables, so called because they are invariant – such as a person’s gender, whether they have previous convictions and the like. The second type refers to the dynamic factors, often called “dynamic needs” or “criminogenic needs”, as they represent variables that a person is supposed to have “need” or deficit in, and can be altered by time, treatment or opportunity. Examples of dynamic factors are things such as substance abuse, mental illness, employment and the like. …

63. Dr Lennings went on to observe that the applicant’s offending occurred 20 years ago and he has never received a period of full time detention. He said that actuarial risk assessments typically can be used to predict re offence up to 10 years post sentencing and noted that the applicant was well past that period. He also said that, typically, the risk of recidivism halves every 5 years that a person is in the community and had not re-offended, and that by 20 years a person’s measurable risk is indistinguishable from that of any person with a non-sexual criminal offence in their background. Hence, in the absence of any other re-offending in the last 20 years and any anti-social aspects to the applicant’s character, Dr Lennings was of the opinion that the applicant’s current risk was ‘below a measurable threshold’.

64. Regarding the dynamic risk assessment factors, Dr Lennings said that only two elements of the applicant’s current situation had been identified to contribute to a possible risk. These were identified as the applicant’s unsatisfactory marriage, which lacks any meaningful intimacy, and his tendency to engage in elaborate sexual but non-deviant fantasy. However, Dr Lennings said the applicant appeared to be quite aware of the danger of allowing fantasy to extend without inhibiting it. He noted that the applicant was compliant with medication for his anxiety and OCD and is well supported by regularly seeking treatment from his counsellor and psychiatrist and he did not regard the applicant’s dynamic factors added to his current risk.

65. Dr Lennings concluded his report by saying that, in his opinion, the applicant’s assessed risk is very low and below a threshold of measurable risk and the likelihood of sexual or other harm to a child by the applicant appeared to be negligible.

66. In his subsequent report of 4 June 2021, having been provided with additional information, Dr Lennings said that there was no change to his earlier opinion that the risk of the applicant re-offending ‘is no greater than that of any person with a criminal record but who has not sexually offended’.

67. In his oral evidence, Dr Lennings confirmed his opinion.

68. As noted by the respondent, the long-term treating psychiatrist of the applicant, Dr Stephenson, expressed a similar view in her psychological assessment report of the applicant.

69. Having regard to the evidence of the applicant, Dr Lennings, Dr Stephenson and the material before the Tribunal more generally, we find that the likelihood of any repetition by the applicant of an offences of the kind he was convicted in 2003 is low. This is particularly relevant given the long history of the applicant’s compliance in ongoing treatment and medication for his mental wellbeing.

S 60(1)(i1): any order of a court or tribunal that is in force in relation to the applicant

70. There was no evidence of any order of a court or tribunal being in force against the applicant.

S 60(1)(j): any information given by the applicant in, or in relation to, the application

71. The applicant provided 12 character references from family members, work colleagues, members of the community who have worked with him or know him and members of his local church. These are generally positive and express the view that they do not believe he is a risk to children. The referees appear to be aware of the applicant’s offending and some speak of having seen the applicant’s interaction with children.

S 60(1)(j1): any relevant information obtained in accordance with s 36A

72. This is not a relevant factor in this application.

S 60(1)(k): any other matters the respondent considers necessary

73. As we have already noted the respondent neither opposes nor supports the making of the orders sought.

Conclusion: Has the respondent discharged its’ onus that he poses a risk to the safety of children?

74. In conclusion, we reiterate, on the material before us, the s 30(1) factors and the paramount consideration in s 4 of the WWC Act, we are satisfied that the applicant has discharged his onus in rebutting the presumption that he poses a risk to children today by reason of his 2003 offending. In summary we make this finding on the following basis:

1. the applicant has been fully frank in the course of these proceedings;

2. while the 2003 offending was very serious, in that he was in a position of trust and the victim was especially vulnerable, it was, as acknowledged by the applicant not isolated. Nevertheless, as noted by Dr Lennings in his oral evidence the offending did not involve grooming and if it did, then in his opinion, it was not consciously done so;

3. the offending occurred more than twenty years ago;

4. the applicant does not otherwise have a criminal record;

5. there is no evidence of the applicant being the subject of any complaints involving children. The work place complaints made against him in 2014 and 2015 appear to be isolated and were not of sufficient seriousness to warrant any disciplinary action being taken against him by his employer. The incidents the subject of those complaints occurred between seven and six years ago and the applicant continues to be employed by the same employer since that time;

6. the applicant has at all times admitted his offending conduct and acknowledged it was wrong. He is now genuinely remorseful;

7. the applicant acknowledges his psychiatric diagnosis and understands that he requires regular and ongoing psychiatric and psychological treatment and medication. He has also demonstrated his ability to comply with these requirements over a long period of time;

8. the applicant has had stable employment for 18 years. He engages with his community and now has many support structures in place. His employment, support structures lengthy compliance with his treatment schedule and medication demonstrate that he is unlikely to re-offend as he did in 2001; and

9. the applicant’s referees all speak of the applicant’s strength of character and the absence of any concerns of risk to children by him.

S 30(1A) Factors

75. First limb (1A)(a) - In our opinion, having heard and observed the applicant give evidence at the hearing and for the reasons set out at [74] above, we were satisfied that the applicant has established that a reasonable person, being acquainted with the information that is before the Tribunal, 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 child related work.

76. Second limb (1A)(b) - We were also satisfied that it is in the public interest to make the orders sought.

77. The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the WWC Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant: Mielczarekv Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 and CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262.

78. The Victorian Court of Appeal considered the meaning of the term ‘public interest’ in the context of the equivalent provision in the Victorian Act: see Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143,at [24]-[26]. In that decision the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:

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.

[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’. 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’.

[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.”

79. The Tribunal has adopted a similar approach to the application of the ‘public interest’ test in s 30(1A)(b) of the WWC Act.

80. As we have noted, the WWC Act identifies the public interest to which it is directed as being the ‘safety, welfare and well being of children’ and in particular ‘protecting them from child abuse’. Thus, an applicant’s private interests in obtaining a clearance must be outweighed by the objectives of the Act in determining the ‘public interest’. However, where an applicant is found to present no real or appreciable risk to the safety children, an enabling order would not, as a general rule, compromise the purposes of the WWC Act.

81. In this case, the applicant has stated that his purpose in seeking an enabling order is so that he can continue with his voluntary work. As the evidence demonstrates, the applicant is particularly passionate about his voluntary work and he has had considerable experience in doing such work, including for his church and its community.

82. Hence, for this reason and the matters set out at [74] above, we are satisfied that the applicant has established that it is in the public interest to make the orders sought.

Conclusion and orders

83. For the reasons set out above, we were satisfied that the applicant had discharged his onus and rebutted the presumption that he poses a risk to the safety of children by reason of his conviction, in 2003, of three disqualifying offences. We were also satisfied that of the matters set out in s 30(1A) of the WWC Act are met.

84. On this basis we were satisfied that it was appropriate to make an order declaring that the applicant is not to be treated as a disqualified person for the purpose of the WWC Act in regard to his 2005 disqualified offending.

85. Hence, we make the following orders:

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction, in October 2003, of three offences of aggravated indecent assault under s 61M(1) of the Crimes Act 1900 (NSW).

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a working with children check clearance.

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

Registrar

Decision last updated: 21 April 2022