FNV v Children's Guardian

[2023] NSWCATAD 173

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	FNV v Children’s Guardian [2023] NSWCATAD 173
Hearing dates:	On the papers
Date of orders:	30 June 2023
Decision date:	30 June 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Bailey, Senior Member J Herberte, General Member
Decision:	(1) Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with. (2) The applicant is not to be treated as a disqualified person for the offence, in respect of the former s.61L of the Crimes Act 1900 (NSW), for which he was convicted on 18 November 2002. (3)   The application for an enabling order is granted. (4) Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – disqualifying offences – enabling order – circumstances of offence – conduct of applicant in period since offences occurred– discharge of onus
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267
Texts Cited:	Nil
Category:	Principal judgment
Parties:	FNV (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitor: Maritime Union of Australia (Applicant) Crown Solicitor(respondent)
File Number(s):	2022/00312949
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR decision

Background

1. The Applicant in these proceedings is referred to as "FNV". FNV is the applicant's pseudonym used in these proceedings in conformity with the order of the Tribunal, dated 10 November 2022, pursuant to s 64 (1)(a) of the Civil and Administrative Tribunal Act 2013.

2. The applicant applied for a Working with Children Check Clearance (WWCCC) on 14 September 2022. Subsequently, the respondent became aware that the applicant had been convicted of a criminal offence.

3. This matter was a ‘disqualifying offence’ under the Act and the application was refused: in accordance with s 18(1)(a). The disqualifying offence was assault with act of indecency, pursuant to s 61L (now repealed) of the Crimes Act 1900 (NSW)

4. The applicant pleaded guilty, was convicted and sentenced to a twelve-month good behaviour bond, with conditions. This offence is commensurate with offences listed in Sch 2 of the Act, equating to a ‘disqualifying offence’ as defined under the Act at Sch 2 Cl 1 (1) (h) (i).

5. Consequently, on 5 October 2022, the Children's Guardian issued the applicant with a Notice to Disqualified Person pursuant to s 18 of the Act.

6. On 20 October 2022, the applicant applied to the Tribunal for an enabling order. The application states that the applicant seeks a clearance so that he can continue working with a seafaring company, involved with the Australian Defence Programme in Western Australia, on a submarine salvage vessel in a border-force role, in which capacity he must occasionally work with Royal Australian Navy (RAN) cadets, who come on board ship from time to time.

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

8. The Tribunal is required to consider section 30(1) and (1A) and determine whether he has rebutted the presumption that he poses a risk to the safety and well-being of children. We are also mindful of the Superior Court guidance that the risk must be both real and appreciable.

9. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. The applicant is presumed to be a risk to children because he was convicted of assault with an act of indecency on 12 November 2001. He was sentenced to a twelve-month good behaviour bond and was ordered to continue his engagement with a methadone program counselling.

10. According to the NSW police facts sheet, the assault occurred on 25 March 2001, when the applicant was 26 years of age. The applicant and the victim had previously been in a four-year relationship, which had ended. The victim had, at the time of the offence, commenced a relationship with another man.

11. On the night of the offence, the victim was at the applicant’s apartment. The applicant had been taking cannabis and attempted to have sexual intercourse with the victim, who refused. The victim tried to leave the applicant’s apartment. The applicant blocked her from leaving. He then became violent and began masturbating. He held the victim down on a bed and rubbed his penis on her left groin area, whilst she was still wearing her jeans. He then ejaculated on her jeans.

12. The applicant then verbally abused the victim and threatened her and her new boyfriend. He held a pillow over her face and pressed down. After a short time, the applicant stopped, and the victim, who had been trying to scream, tried to escape. The applicant threatened her with a “razor scooter”, which he held over his head. She managed to open the door and run to a nearby public phone box. She rang her mother, who telephoned the police.

13. The applicant followed the victim and physically assaulted her, by headbutting her and lashing out with the scooter, making contact with her right hand, and cutting her finger.

14. The applicant then left but returned on several occasions when he continued to verbally abuse and threaten the life of the victim, until the police arrived.

15. The offence was extremely serious. However, the victim was not a child.

16. The respondent filed submissions, on 22 March 2023, outlining the Children’s Guardian’s view that the applicant had not provided sufficient evidence to the Tribunal to displace the presumption of risk under s.28(7) of the Act.

17. A hearing took place on 19 April 2023. The applicant attended in person, with his solicitor, Mr Bond. The respondent was represented by Ms Detraya, Mr Madden, and Mr Morrison, who also attended in person.

18. Prior to the hearing, on 5 April 2023, the applicant had filed a supplementary statement and submission, each addressing the respondent’s submissions. As a result of the information contained in the applicant’s statement and submissions, the respondent indicated that his attitude to the application had changed. By consent, the hearing was adjourned, to enable the respondent to submit an amended response to the application.

19. By consent, it was ordered that the adjourned hearing would take place on the papers.

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

21. The purpose underlying the analysis of the evidence is to achieve the protective goal set out in sections 3 and 4 of the Act.

The working with children legislative scheme

22. Section 3 of the Act provides that the object of this Act is to protect children:

23. by not permitting certain persons to engage in child-related work, and

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

25. Section 4 dictates that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

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

27. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act.

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

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

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

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

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

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

Jurisdiction

31. There is no dispute that the Tribunal has jurisdiction to determine the matter.

32. The jurisdiction of the Tribunal under Part 4 of the Act is not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61].

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

28 (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

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

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

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

(b) the person’s clearance has been cancelled under section 23, because the person is a disqualified person.

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

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

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

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

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

(9) (Repealed)

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

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

Burden of Proof

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

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

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

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

The Hearing

39. By way of orders made on 28 February 2023, pursuant to s50 of the Civil and Administrative Act 2013, a hearing of this matter is dispensed with, and the matter is to be determined based on documents submitted by the parties.

Written evidence

40. Both parties filed written material in support of the matter. In our view there is no need to detail that material other than to the extent that it is relevant to our consideration of the mandatory issues.

Applicant’s submissions

41. The application states that the applicant seeks a clearance so that he can continue working with a seafaring company, involved with the Australian Defence Programme in Western Australia, on a submarine salvage vessel in a border-force role, in which capacity he must occasionally work with Royal Australian Navy (RAN) cadets, who come on board ship from time to time. He said that the cadets are usually aged in their late teens or older.

42. The applicant conceded that he was convicted of assault with an act of indecency. However, he noted that the offence did not involve the child. He expressed remorse and embarrassment as a result of his offending conduct.

43. The applicant accepted that the disqualifying offence means that the statutory presumption must be displaced. He does not dispute that he demonstrated “concerning behaviour in the past”. However, he maintains that there is no real and appreciable risk to children.

44. He submitted that, at the time he committed the offence, he was addicted to drugs and alcohol. He had a history of abusing heroin, marijuana, alcohol, and other illicit drugs. He also stated that, in addition to the disqualifying offence, between late 2001 and 2002, the applicant committed other offences. These were stealing offences, all of which were committed while he was affected by illicit substances.

45. In 2005, the applicant enrolled in the Salvation Army’s ‘Bridge’ program, which is an intensive inpatient drug and alcohol rehabilitation program. This, he submitted, involved intensive meetings with a psychologist and group therapy sessions paragraph the applicant submitted that he completed ten months of the program before he relapsed, and was expelled from the program.

46. However, he submitted that he re-enrolled and completed the program in 2006. He submitted that the Bridge program then employed him as a support worker, in which role the applicant dedicated himself to assisting addicts to rehabilitate.

47. He said that he left that role to obtain employment as a well-paid Seafarer.

48. The applicant submitted that he was abstinent, and had no contact with the criminal justice system, between completing the program and commencing the relationship with another woman, who also became a victim of his offending behaviour, in approximately 2009 or 2010. He alleges that the victim was herself a person who abused illicit drugs and alcohol. The applicant concedes that he relapsed, during this relationship. He was convicted of assault occasioning actual bodily harm on 18 Jan 2011, and sentenced to and 18-month good behaviour bond and fined $1000.

49. He said that he now realises that his relationship with this victim was ‘toxic’ for both parties. He admitted that he was jealous and controlling and unable to control his negative emotions and anger, at that time. He said that being charged with the offence made him realise that he had ‘hit rock bottom’ and that he had to remain completely sober and manage his anger issues or spend years of his life in prison.

50. He therefore enrolled in an anger management course with Hunterlink, a specialist welfare and support service for seafarers and Maritime workers. The applicant submits that the disqualifying offence served as ‘a wakeup call’ and that he had been sober since that time.

51. The applicant attested that he has remained sober for nearly a decade and that he regularly attends Alcoholics Anonymous (AA) meetings and intends to do so for the rest of his life. He has an AA sponsor and sponsors others.

52. He also said that, because of the techniques he learned from Hunterlink, he has overcome the ‘anger issues’ that previously called him to hurt his domestic partner. He submitted that, since 2011, he has not acted violently towards anyone, and has not committed any crime since 2010.

53. The applicant submitted that the Tribunal ought not to judge him by ‘the worst moment of his life’. He said that he is embarrassed, ashamed, and sorry for his actions.

54. He asked the Tribunal to consider the fact that he has not committed offence for over 13 years and that he has never harmed a child. He asked that the Tribunal also recognise that he has taken responsibility for his offending behaviour and has demonstrated genuine remorse.

55. The applicant also that the Tribunal should consider the fact that he has had two significant intimate relationship since becoming sober and completing his anger management courses. Between 2015 and 2017 he lived with a woman and her four boys aged between six and 15 years old. He said that was the relationship did not last, they parted amicably and remain friends to this day. He asked the tribunal to consider her statement, available to the Tribunal, attesting to his good character.

56. More recently, the applicant said he lived with a woman for approximately four years, until he decided to accept employment as a Seafarer. He said that the woman was unwilling to continue the relationship, because he would be at sea for periods of 5 to 6 weeks at a time. Nevertheless, he said they parted amicably and remain friends.

57. The applicant asked the Tribunal to consider several character references that were submitted in evidence.

Respondent’s Submissions

58. The respondent’s written submissions, filed on 22 March 2023, set out the statutory framework and applicable principles in detail. We do not need to repeat that aspect of the submission in these Reasons for Decision.

59. Initially, the respondent submitted that the tribunal could not be satisfied that the applicant had displaced the presumption that he does not pose a risk to the safety of children.

60. However, as set out in his supplementary submission, dated 21 April 2023, the respondent now supports the application and submits that it is open to the Tribunal to make the enabling order.

61. More particularly, the respondent submitted that, in light of additional information provided by the applicant, particularly with respect to that his involvement with anger management course, and the ongoing exercise of techniques developed during that treatment, and because of the evidence that he has demonstrated the ability to form healthy romantic relationships, the respondent now considers the applicant has adequately addressed the psychological factors underpinning his previous domestic violence.

58. The respondent also submitted that, while the evidence is unclear whether the offending behaviour arose while the applicant was under the influence of alcohol, the applicant attributed his offending behaviour not so much to the influence of alcohol but to his inability to control his negative emotions and anger at that time in his life. The respondent asked the Tribunal to place greater weight on the applicant’s anger management treatment than his drug and alcohol rehabilitation, in order to determine whether he is likely to commit another domestically violent offence.

59. The respondent noted that the applicant has demonstrated his understanding of healthy approaches to intimate relationships and has also demonstrated ability to implement those techniques learnt. Therefore, the respondent submitted that it is open to the Tribunal to find that the applicant has appropriately rehabilitated the factors driving his previous domestically violent offending.

60. The respondent also submitted that it is open to the Tribunal to find that the applicant has demonstrated insight into his offending behaviour, through his continued attendance at Alcoholics Anonymous meetings.

61. The respondent agreed that the applicant’s criminal history check does not identify any disclosable court outcomes since the offending conduct. The respondent also noted five character references, provided by the applicant, including those of a former partner, are positive in terms of their assessment of the applicant’s character in professional and personal circumstances.

62. However, the respondent noted that only two of the character references make explicit reference to any knowledge of the applicant’s offending behaviour. The statement of the applicant’s former domestic partner does not make any such reference. However, the respondent submitted that the fact that she was in a domestic relationship with the applicant, and was happy for the applicant to live with her and her 2 children during their relationship, can be considered by the Tribunal.

63. The respondent submitted, on the basis of the applicant’s evidence, filed on 5 April 2023, that the applicant does not pose a real and appreciable risk to the safety of children and at the statutory presumption to the contrary has been displaced, having regard to the passage of time since the disqualifying offence and the last instance of criminal offending and the fact that the offences did not involve children, in addition to the fact that the applicant has successfully engaged in substance abuse and anger rehabilitation programs.

64. Therefore, the respondent submitted that it is open to the Tribunal to find that it could be satisfied a reasonable person would allow his or her child had direct unsupervised contact with the applicant while he was engaged in any Child related work, and that it is in the public interest to allow the applicant to undertake the paid work he has identified.

Section 30 (1) considerations

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

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

70. It is uncontested, and the Tribunal accepts, that the offence and its impact on the victim was extremely serious. Despite that, relevantly to this application, it did not involve children.

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

71. The offence occurred 22 years ago.

72. The Tribunal accepts, because it is not disputed, that the disqualifying offence was a catalyst for the applicant to address his offending behaviour and take active measures to ensure that he did not re-offend.

73. The applicant has not been charged with any offences of a similar nature at any other time.

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

74. The applicant was 26 years of age when the disqualifying offence occurred. He is now 48.

(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.

75. The victim was 24 years of age when the disqualifying offence occurred.

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

76. The difference in age between the applicant and the victim was two years. The parties were in an intimate relationship, which had ended by the time of the offending behaviour.

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

77. The victim was not a child.

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

78. The Tribunal accepts, because it is uncontested, and because it is consistent with the applicant’s criminal history record, that he has not been charged or convicted with any offence in the last 13 years.

79. He was, however, convicted of the following offences between 1993 and 2002, into the disqualifying offence. These include malicious damage, stealing and goods in custody offences, as well travelling by rail without having previously paid a fare.

80. Between April 1993 and September 1997 there are two offences recorded, which resulted in six charges being laid. Between November 2021 and April 2022 are three occasions on which the applicant was charged.

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

81. The disqualifying offence did not involve a child. However, any extremely serious offence such as that committed by the applicant has a detrimental effect on society, including children or young people.

82. There is no evidence to contradict the character references provided by the applicant. These character references attest to the fact that the applicant has been open and transparent about his alcohol addiction and that he has mentored younger addicts to assist them on the path to sobriety.

83. Furthermore, the statement from the applicant’s former domestic partner demonstrates that he lived in a household with children without any evidence of having behaved in a manner which presented a risk to those children. Relevantly, there is also no evidence that he behaved violently or was unable to control his anger during the relationship or subsequently.

84. Therefore, the Tribunal is satisfied that there is no evidence to suggest that the applicant presents any greater risk of reoffending than any other member of the community. In fact, he has taken active and sustained measures to ensure that he does not reoffend.

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

85. The applicant’s submissions are set out earlier in these Reasons for Decision.

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

86. The respondent’s submissions are set out in these Reasons for Decision.

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

87. The respondent submitted that, on the basis of the matters set out above, the applicant does not pose a real and appreciable risk to the safety of children and that the statutory presumption to the contrary has been displaced.

The statutory approach

88. The superior Courts have set out the statutory approach that the Tribunal must apply when determining the substantive question of risk. In the current matter there is only one matter that could be considered noteworthy in determining risk to children in any adverse manner, namely the disqualifying offence.

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

90. The applicant has one relevant conviction (the disqualifying offence). However, this offence did not involve a child, and occurred 22 years ago. Therefore, we attribute little weight to the disqualifying offence for the purpose of this application.

Consideration

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

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

93. Notwithstanding the disqualifying provisions, and the positive finding against the applicant, we do not find that that the disqualifying offence demonstrates any current risk as set out by Young J in Commission for Children and Young People v V as referred to (above).

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

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

Section 30 (1A) consideration and findings

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

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

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

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

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

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

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

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

100. Regard would also be given to the applicant’s recent history and lack of any evidence of risk to children. In this instance, we accept that the applicant has lived in a household with children, without incident.

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

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

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

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

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

104. In our view there is nothing to demonstrate or suggest that that it would be contrary to public interest to grant a clearance. Having found that the issuing of a clearance would not pose an unjustified risk to the safety of children, we find that the applicant’s desire to maintain his employment.

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

Conclusion

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

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

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

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

Orders

1. Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.

2. The applicant is not to be treated as a disqualified person for the offence, in respect of s.61L of the Crimes Act 1900 (NSW), for which he was convicted on 18 November 2002.

3. The application for an enabling order is granted.

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

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

Registrar

Decision last updated: 30 June 2023