GBQ v Children's Guardian

[2024] NSWCATAD 324

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GBQ v Children’s Guardian [2024] NSWCATAD 324

Hearing dates:

20 August 2024

Date of orders:

04 November 2024

Decision date:

04 November 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Bryant, Senior Member
Emeritus Prof P Foreman AM, General Member

Decision:

(1) The Tribunal declares that the Applicant is not to be treated as a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s 474.27A of the Criminal Code (Cth) that was found proven against the applicant in the District Court of NSW on 21 June 2018.

(2) The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).

Catchwords:

ADMINISTRATIVE LAW — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012

Legislation Cited:

Child Protection (Working with Children) Act 2012

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

BKE v Office of the Children's Guardian [2015] NSWSC 523

Children’s Guardian v CVE [2017] NSWSC 1342 Commissioner for Children and Young People v FZ [2011] NSWCA 111

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

DAI v Children’s Guardian [2017] NSWCATAD 308

DOP v Children's Guardian [2019] NSWCATAD 23

ECQ v The Children’s Guardian [2021] NSWCATAD 217

FFB v Children’s Guardian [2022] NSWCATAD 71

Office of the Children’s Guardian v EQE [2022] NSWSC 871

OYJ v Secretary to the Department of Justice &

Regulation (Review and Regulation) [2019] VCAT 33

Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GBQ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
J Birrell (Applicant)
G Bromwich (Respondent)

Solicitors:
Parker & Kissane (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00348774

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the disclosure by way of 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.
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

1. The applicant seeks an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (the Act). The respondent refused the applicant a working with children check clearance (WWCCC) because he is a disqualified person under the Act.

2. The applicant seeks a finding from the Tribunal that he does not pose a risk to the safety of children. It is presumed that the applicant poses a risk to the safety of children under the Act because he pleaded guilty to the disqualifying offence of using a carriage service to transmit an indecent communication to a person under 16 years of age that was found proven against the applicant in the District Court on 21 June 2018.

3. The applicant applied for a WWCCC on 11 September 2023. On 5 October 2023 the respondent notified the applicant that it had refused to grant him a WWCCC because he is a disqualified person under the Act.

4. The applicant filed the application with the Tribunal for an enabling order on 2 November 2023.

5. The respondent cannot grant a WWCCC to a disqualified person under the Act. The respondent opposes the application for an enabling order.

6. If the Tribunal makes the enabling order, it may order the respondent to grant the applicant a WWCCC under the Act.

7. Due to the sensitive nature of these proceedings, an order was made on 23 November 2023 under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that, 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. To give effect to this order, the pseudonym 'GBQ' has been used for the applicant's name and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed.

Material before the Tribunal

8. The applicant provided an affidavit, an affidavit and report from forensic clinical psychologist Dr Rachel Watson, a letter from the applicant’s previous treating counsellor, a letter from the applicant’s current treating psychotherapist, nine references, and written submissions to the respondent and the Tribunal.

9. The respondent provided three bundles of documents and written submissions to the applicant and the Tribunal.

10. The material was conveniently compiled into a Hearing Book which was tendered at the hearing.

11. The respondent also relied upon the applicant’s signed application for an enabling order filed with the Tribunal on 2 November 2023.

The hearing

12. The applicant gave oral evidence and was cross examined by audio visual link at the hearing.

13. The expert psychologist, Dr Watson, also gave oral evidence and was cross examined by audio visual link at the hearing.

14. Both parties made oral submissions at the hearing.

The applicant’s case

15. The applicant submits that, in all the circumstances, he does not pose a real and appreciable risk to children having regard to the mandatory factors set out in s 30(1) of the Act. The applicant submitted that the Tribunal can be satisfied that the mandatory considerations under s 30(1A) of the Act have been met and that his application should be allowed.

The respondent’s case

16. The respondent conceded that the applicant appears to have rebutted the presumption of risk on the available material. However, the respondent’s position was that an enabling order should not be granted on the basis of the mandatory considerations under s 30(1A) of the Act.

Legislation

17. The Act establishes a regime of checks and clearances for persons working with children in NSW. The object of the Act is as follows:

3 Object of Act

The object of this Act is to protect children—

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

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

18. The paramount consideration in the operation of the Act is found in s 4:

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

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

19. The following definitions from s 5 are instructive in this matter:

5 Definitions

(1) In this Act—

…

adult means a person who is 18 years of age or older.

…

child-related work—see sections 6 and 7.

children means persons under the age of 18 years.

…

conviction 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.

…

disqualified person—see section 18(1).

…

enabling order—see section 28.

…

working with children check clearance or clearance means an authorisation that is in force under this Act to engage in child-related work.

20. Risk to the safety of children is defined 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. By the operation of s 6 (child-related work), s 8 (restrictions on engaging in child-related work) and s 9 (employers must require clearance or current application) it is unlawful for a person to engage in child-related work without a WWCCC (or a current application for a clearance) and for an employer to employ a person in child-related work without the same.

22. Section 12 provides for two classes of clearances: volunteer – for a volunteer to engage in unpaid child-related work (12(1)(a)), and non-volunteer – for a worker to engage in paid and unpaid child-related work (12(1)(b)).

23. Section 13 allows a person to apply to the Children’s Guardian for a WWCCC.

24. Various exemptions to the need for a WWCCC are provided in the Act and the Child Protection (Working with Children) Regulation 2013.

25. Section 18 relevantly provides that disqualified persons are not able to be granted a WWCCC by the Children’s Guardian 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,

26. Section 28 makes provision for enabling orders under the Act 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.

(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.

(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.

27. Section 30 provides guidance to the Tribunal when determining an application for an enabling order:

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.

28. Schedule 2 specifies disqualifying offences for disqualified persons under the Act. In this case the relevant part is found in Schedule 2, cl 1(1)(ac):

Schedule 2 Disqualifying offences

1 Specified offences

(1) The following offences are specified—

…

(ac) any other offence that is a registrable offence within the meaning of the Child Protection (Offenders Registration) Act 2000, if the offence was committed as an adult,

29. The Child Protection (Offenders Registration) Act 2000 (CPOR Act) provides the following definition of registrable offence:

3 Definitions

(1) In this Act—

…

registrable offence means an offence that is—

…

(b) a Class 2 offence, …

…

Class 2 offence means—

…

(g) an offence against section …. 474.27A of the Criminal Code of the Commonwealth,

30. The disqualifying offence is a criminal offence under s 474.27A(1) of the Criminal Code Act 1995 (Cth) (Criminal Code) which, at the relevant time, provided as follows:

474.27A  Using a carriage service to transmit indecent communication to person under 16 years of age

(1) A person (the sender) commits an offence if:

(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and

(b) the communication includes material that is indecent; and

(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and

(d) the sender is at least 18 years of age.

Penalty: Imprisonment for 7 years.

(2) In a prosecution for an offence against subsection (1), whether material is indecent is a matter for the trier of fact.

(3) In this section:

indecent means indecent according to the standards of ordinary people

Consideration

Background

31. The applicant is a 27-year-old Aboriginal man living in northern New South Wales. The applicant’s father, a social worker, died in an accident when the applicant was 19 years of age, about one year before the disqualifying offence. The applicant applied for a clearance under the Act for the purposes of pursuing education and employment in social work.

The disqualifying offence

32. The disqualifying offence occurred on 14 November 2017.

33. On 21 October 2017, the victim, a 13-year-old child, began to communicate with the applicant on Facebook Messenger using her adult relative’s account. The applicant was friends with the victim’s relative, who he connected with online through a gaming platform but had never met in person.

34. On 14 November 2017, the applicant exchanged a series of graphic sexual messages with the victim. The applicant sought an intimate image (child abuse material) from the victim and discussed engaging in sexual activity with the victim, including penetrative sexual activity. The applicant suggested how the victim could avoid the child’s parent's detection of the proposed sexual activity. The applicant encouraged sexualised comments from the victim. The exchanges are suggestive of a desire for physical sexual contact in the future, although there is no evidence that any steps were taken towards this. The applicant and the victim did not meet in person and no intimate images were sent or exchanged.

35. On 15 November 2017 the victim’s carer contacted NSW police after the carer became aware of the messages between the applicant and the victim.

36. On 16 November 2017 the applicant contacted his local police station and told a police officer about the conversation he had with the victim over Facebook Messenger and that it was sexual in nature. The applicant told the police officer it was a huge mistake.

37. On 17 November 2017, police attended the applicant's residence and arrested him. He was taken to the local police station and admitted to possession of the mobile phone used in the commission of the offence and to contacting police on 16 November 2017. The applicant participated in an interview with police and made admissions. He was granted bail on the condition that he not access all forms of social media, commit further offences, or contact any prosecution witnesses.

38. On 17 November 2017 the applicant was charged with one count of using a carriage service to transmit an indecent communication to a person under 16 years of age under s 474.27A(1) of the Criminal Code (Cth).

39. On 3 April 2018 the applicant pleaded guilty to the disqualifying offence in the Local Court of NSW. The applicant was convicted. Pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) the applicant was given a recognizance release order for 2 years in the sum of $500 and was also required to maintain counselling with his treating counsellor or other mental health social worker as discussed with his GP.

40. The applicant lodged a severity appeal in the District Court of NSW.

41. On 21 June 2018, the District Court allowed the appeal and varied the order made on 3 April 2018. By order under s 19B(1)(d) of the Crimes Act 1914 (Cth) the District Court set aside the conviction on the condition that the applicant gave recognizance in the sum of $200, was of good behaviour for 18 months, and continued with counselling sessions for as long as the counsellor deemed necessary.

42. At the time of the offence the applicant was 20 years old, and the victim was 13 years old.

43. Under s 18(1) of the Act, the respondent must not grant a WWCCC to a disqualified person. Through the working of s 18(1)(a) and Schedule 2, cl 1(1)(ac) of the Act, and the definitions of “registrable offence” and “Class 2 offence” in the CPOR Act, this includes a person who has pleaded guilty to an offence committed as an adult under s 474.27A of the Criminal Code (Cth). This is because a “conviction” 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: s 5(1) of the Act.

An enabling order under s 28 of the Act

44. Due to the disqualifying offence, it is presumed that the applicant poses a risk to the safety of children unless proven otherwise: see s 28(7) of the Act.

45. Under s 30(1A) of the Act an enabling order may not be made 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.

46. To determine whether an enabling order should be made under s 28(1) of the Act, the Tribunal takes a two-step approach. First, the Tribunal must assess whether it is satisfied that the applicant does not pose a risk to the safety of children. Second, if the Tribunal is satisfied that the applicant does not pose a risk to the safety of children, it must then assess whether it is satisfied that the “reasonable person” test and the “public interest” test in the first and second limbs under s 30(1A) of the Act have been met: FFB v Children’s Guardian [2022] NSWCATAD 71 at [21].

46. Both the “reasonable person” test and the “public interest” test must be satisfied before the Tribunal makes an order enabling a person to work with children: Children’s Guardian v CVE [2017] NSWSC 1342 at [23], [26].

47. The Tribunal’s approach to the exercise is protective not punitive: Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61].

Whether the Tribunal is satisfied that the applicant does not pose a risk to the safety of children

49. “Risk to the safety of children” is defined in s 5B of the Act.

50. As was noted in BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26] the concept of “risk to the safety of children” s 28(7) invokes:

the following explanation given by Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949 at [42] (“V”) in relation to the word “risk” as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

“What one is looking for is whether, in all of 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 children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of the children’.”

51. The burden is on the applicant to displace the statutory presumption in s 28(7) of the Act.

52. The applicant has a duty to fully disclose any matters relevant to the application to the Tribunal: s 28(5) of the Act.

53. The respondent submitted to the Tribunal that on the available evidence it was of the view that the applicant has rebutted the statutory presumption of risk.

The applicant’s insight and risk factors

54. The applicant was cross examined by the respondent. Overall, the Tribunal considered the applicant to be a witness of credit. He expressed appropriate remorse for the offending behaviour and showed an understanding of the impact that the offending behaviour would have had on the victim. He admitted that he knew she was under 16 years of age. He acknowledged that he should have not engaged in communications with the victim and should have considered informing her adult relative that she was messaging the applicant.

55. The applicant was honest about his past struggles with his mental health. He referred to first being diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in late 2021 / early 2022 when he was also re-diagnosed with anxiety. The applicant spoke of the positive impact of his ADHD medication for his impulse control and emotional regulation and the importance of taking it, from a risk perspective. The applicant admitted to a six-month period in 2023 of not being able to take his medication because of a nation-wide shortage and the unavailability of his psychiatrist for an appointment. The applicant engaged in regular counselling sessions in the years following his father’s death. He has engaged in counselling sessions with his current therapist since 2022. He consumes approximately two standard drinks a week.

56. The applicant gave evidence about the changes in the way he behaves towards children since the offence, and emphasised the importance of maintaining a professional and respectful distance and respecting the role of their parents. The applicant was questioned about his strategies in managing his online interactions since the offence to ensure he is not inappropriately engaging with persons under 18. These strategies have included checking the online profile of the person, the language used by them and, on several occasions, their identity documents.

57. The applicant has held various short-term jobs and is currently looking for work. He volunteers at a local theatre company and has undertaken studies at TAFE in the areas of Aboriginal and Torres Strait Islander cultural arts and live entertainment production.

58. The applicant provided nine recent character references in support of his application. The authors of these references confirmed their awareness of the applicant’s disqualifying offence. Two of these are from employers, two are from family members, and five are from friends. The references from family and friends comment on observing the applicant with children in positive terms. Two of them specifically state that they trust the applicant to care for children unsupervised.

Psychologist’s report

59. The Tribunal considered the report of Dr Rachel Watson, forensic clinical psychologist, dated 6 March 2024 and her supplementary report dated 18 March 2024. Dr Watson was briefed by the applicant’s legal representatives with detailed background information relevant to these proceedings and assessed the applicant before producing an independent expert report.

60. Dr Watson impressed the Tribunal as well-qualified in the areas of treatment of sex offenders and in assessing their risk of further offending. In the Tribunal’s estimation, Dr Watson was considered in her opinions and showed under cross-examination that they were reasonably held.

61. In her report dated 6 March 2024 Dr Watson summarised the circumstances that led to the offending and the applicant’s experience, medication, maturation, therapy and other positive factors that have occurred since that time:

[The applicant’s] sexual offending appeared to be underpinned by poor coping (using sex and attention from the victim for coping), impulsivity (related to significant undiagnosed ADHD and disinhibition from alcohol), and opportunity. It is noted that having a negative mood-state appeared to allow him to justify engaging in problematic behaviours to make himself feel better. This pattern appears to underpin a range of behaviours that have caused him problems historically, and is not specific to sexual offending. At the time of the offence, this was exacerbated by the first anniversary of the sudden death of his father. It is noted that [the applicant] appeared to recognise that the behaviour was wrong soon after it occurred, and sought out his mother for advice. There has been no indication of any problematic sexual behaviour prior to or after this time (in 2017). In addition, [the applicant] does not have any sexual deviance, hypersexuality, or antisocial personality that are common drivers for further offending.

Beyond the sexual offence, [the applicant] has no other offences on his criminal record. During the current assessment he admitted to stealing on a number of occasions during his early and mid-teenage years. These behaviours appear to have been related to issues associated with his untreated ADHD, including problems with delaying gratification and being motivated by things that give him immediate positive reward. He also appeared to be more self-focused, and found it hard to look beyond the immediate circumstances, and his emotions/experiences at that time. With experience, medication to manage some of the ADHD symptoms, and maturation, [the applicant] appears more able to stop and think before acting, and to consider factors beyond his immediate emotional state.

[The applicant] has a long history of impulsivity and acting without thinking, particularly during his childhood and adolescence. His development appears to have been significantly impacted by undiagnosed and untreated ADHD (with secondary depression and anxiety) and possible Autism Spectrum Disorder (ASD). These undiagnosed neurodevelopmental disorders seemed to have slowed his development of life skills as well as his emotional maturation. He noted that he experienced a lot of frustration and anger at school, which often occurred in response to significant, pervasive bullying, as well as feeling overwhelmed by his environment. It is noted that emotional lability is a symptom of ADHD, which [the applicant] has been working to manage since his school years, and appears to have significantly improved by taking ADHD medication, as well as with experience and maturation gained over time. Although [the applicant] does not desire to seek a diagnosis for ASD at this time, in my opinion it is highly likely that some of the frustrations and difficulties he experienced at school are related to both ADHD and ASD.

It is noted that even with these difficulties, [the applicant] has persisted in engaging in therapy to gain a better understanding of himself and his reactions. It is a significant strength of his that he engages in help-seeking behaviour when needed, and engages well with mental health and medical professionals. In addition to this, he has a good capacity for self-reflection, although may tend towards negative self-judgement at times. It is also a significant strength that [the applicant] has positive non-offending life goals. It is noted that [the applicant] has already been doing everything that would be recommended for him psychosocially, including developing beneficial coping strategies, managing his impulsivity, and managing his mood and anxiety (which appears to have significantly improved since commencing ADHD medication).

62. In her supplementary report dated 18 March 2024 Dr Watson made the following observations of the applicant’s insight into the harm caused to the victim by his offending, and his remorsefulness for the offending behaviour:

As noted, in the psychology report, dated 06/03/2024, [the applicant] has shown no signs of denying or minimising his offending, either historically or recently. Although he lacked insight into the victim's vulnerability at the time of the offence, he demonstrates a good understanding of this matter currently. [The applicant] has shown an ability to learn from his experiences through his ability for self-reflection and through his help-seeking behaviours. [The applicant] showed awareness into the potential harm his actions may have caused the victim, and he was almost immediately aware that his actions were wrong. He has taken responsibility for his actions and adhered to the required legal conditions.

[The applicant] shows a good capacity for general empathy in his life and has shown a good level of victim empathy. He expressed remorse and guilt for his behaviour, immediately after the offending, as well as currently. There does appear to be some internalised shame due to the offence, but [the applicant] continues to develop his self-esteem and build healthy relationships and appropriate coping strategies.

63. Dr Watson concluded that the applicant is at low risk for future sexual offending, is not at imminent risk of sexual offending regardless of environmental contexts, and would not require any supervision with regard to the risk of child sexual offending in work or social contexts.

64. The Tribunal accepts the assessment of Dr Watson, and specifically that the applicant is at low risk of reoffending. The Tribunal is reassured by the applicant’s absence of sexual offending before or since the disqualifying offence.

The considerations in s 30(1) of the Act

65. The Tribunal must consider the matters set out in s 30(1) of the Act in determining whether the applicant poses a risk to the safety of children.

Section 30(1)(a) - The seriousness of the disqualifying offence or matters which caused the refusal

66. At the relevant time, the disqualifying offence carried a maximum penalty of imprisonment for 7 years. The disqualifying offence involved the applicant sending graphic sexual communications to a 13 year old child. The disqualifying offence is objectively serious. However, the Tribunal also notes the other circumstances of the offence: the conduct occurred over one evening, the applicant did not meet the victim in person, no images were shared. The applicant was remorseful and reported to the police of his own volition within a few days.

67. The applicant referred to the Tribunal’s decision in DOP v Children’s Guardian [2019] NSWCATAD 23 (DOP). In that case the applicant’s disqualifying offence, also under s 474.27A(1) of the Criminal Code (Cth), occurred over a period of months and involved the exchange of sexual images. The Tribunal considered the offending at the lower end of the scale. The applicant had pleaded guilty to the offence and was discharged without conviction subject to a 12-month recognizance to be of good behaviour. In that case the Tribunal considered the punishment received by the applicant indicative of the disqualifying offence being at the lower end of objective seriousness for such offences: DOP at [30].

68. In the current matter, the District Court set aside the Local Court conviction on the condition that the applicant gave recognizance in the sum of $200, was of good behaviour for 18 months, and continued with counselling sessions for as long as the counsellor deemed necessary. The respondent accepted that the penalty imposed by the District Court is consistent with a conclusion that the offending was at the lower end of objective seriousness for such offences.

69. The Tribunal accepts that the applicant’s disqualifying offence is at the lower end of objective seriousness for such offences.

Section 30(1)(b) and (h) - the period of time since the offences, the seriousness of the applicant's criminal history, and the conduct of the person since the offences occurred

70. A period of almost seven years has passed since the disqualifying offence.

71. The applicant’s admissions and early guilty plea meant that the proceedings were concluded expeditiously, and the victim was not required to give evidence.

72. Apart from the disqualifying offence, the applicant has no criminal history and has not been the subject of any police reports involving violence, child abuse or sexual offences. He has never been the subject of an Apprehended Violence Order.

73. The applicant stated in his affidavit:

In November 2017, I engaged in inappropriate written communications with a minor, actions I recognise as gravely serious and deeply regrettable. I have gained significant insight into the inherent vulnerability of children in online settings and the profound impact of my actions on the victim. This period of misconduct, which sharply contrasts with my customary behaviour, coincided with a challenging time of personal grief following my father's passing in November 2016.

74. The applicant also stated in his affidavit:

At the time of the offence in November 2017, I was 20 years old, navigating through a particularly complex period marked by personal turmoil. Now, at the age of 26, the intervening years have been instrumental in my significant maturation and in developing a nuanced understanding of the consequences of my actions. This period of growth extends beyond the passage of time; it is characterised by deep introspection, active learning, and concrete steps towards rehabilitation. Reflecting on the past six years, which constitute roughly a quarter of my life, I recognise these years as pivotal in shaping my sense of responsibility, enhancing my empathy, and reinforcing the importance of safeguarding the well-being of others.

75. The applicant provided a letter of support from his treating psychotherapist, Mr G [name withheld in accordance with publication restriction], accredited mental health social worker. Mr G’s sessions with the applicant every 2 to 3 weeks since May 2022 have focused on supporting the applicant through his depression, anxiety, childhood bullying, and matters related to the offending behaviour. Mr G read Dr Watson’s report and agreed with her findings, particularly that “[the applicant] would not require supervision with regard to [the] risk of child sexual offending in work or social contexts.”

76. Since the disqualifying offence, the applicant has made prosocial decisions and has therapeutic supports in place. He has engaged in regular counselling sessions, sought a diagnosis and received treatment for ADHD, pursued employment and education and has engaged in volunteer work in the community.

Section 30(c) and (g) - The applicant's age now and at the time the matters occurred

77. The applicant is 27 years of age.

78. The applicant was 20 years old at the time of the disqualifying offence.

Section 30(1)(d), (e) and (f) - The age and vulnerability of the victim, and the age difference and relationship between the applicant and the victim, and whether the applicant knew the victim was a child

79. The victim was aged 13 years at the time of the disqualifying offence.

80. The victim was vulnerable because she was a child. The victim was reported to have an intellectual disability which meant that her cognition was “closer to that of an eleven-year-old”. This increased her vulnerability.

81. The victim was 7 years younger than the applicant at the time of the offence.

82. The victim knew the applicant to be a friend of her adult relative through an online gaming platform, but the applicant and the adult relative had never met in person. The victim is likely to have trusted the applicant because he knew her adult relative. This trust was violated by the applicant’s offending.

83. The applicant knew the victim was under 16 years of age. The applicant was not aware of the victim’s reported intellectual disability.

Section 30(1)(i) - The likelihood of repetition of the relevant conduct by the applicant and the impact on children of any repetition

84. Dr Watson concluded that the applicant is at low risk for future sexual offending (see [61]-[63]). Consistent with the report of Dr Watson, the respondent conceded that the likelihood of repetition is low.

85. If the disqualifying offence was repeated the impact on a child victim would be significant.

Section 30(1)(i1) - Any order of a court or tribunal that is in force in relation to the person

86. The applicant is not subject to any order of a court or tribunal.

Section 30(1)(j) - Any information given by the applicant in, or in relation to, the application

87. The applicant submitted that he has provided evidence to the Tribunal (including his own evidence, Dr Watson’s evidence and various personal references from professional contexts, family or social connections) showing:

1. his insight into and remorse for the offending conduct,

2. that he understands the gravity of his conduct,

3. that he has made prosocial decisions and demonstrated an active commitment to rehabilitation and treatment,

4. that the grief at the anniversary of his father’s death at the time of the offending and his inability to constructively deal with difficult life events has markedly improved since that time,

5. that the likelihood of reoffending is low,

6. that the conduct was out of character, that he has regular prosocial interactions with children, and parents known to the applicant trust the applicant to care for their children unsupervised.

88. Much of this evidence has already been referred to earlier in these reasons. These submissions made by the applicant are accepted by the Tribunal.

Section 30(1)(j1) - Any relevant information in relation to the person that was obtained in accordance with s 36A

89. No information was obtained in accordance with s 36A of the Act.

Section 30(1)(k) - Any other matters that the Children’s Guardian considers necessary

90. The respondent referred to the following paragraph from the applicant’s affidavit:

Following the offence, I have significantly altered my interactions with minors. I now abstain from any online communications with them and avoid places predominantly frequented by children unless I am acquainted with their parents. This behavioural change highlights my deepened understanding of the importance of child safety, a responsibility I acknowledge as being shared by all adults.

91. The respondent submitted:

It is acknowledged that the above conduct reflects a degree of caution consistent with the Applicant's status as a disqualified person. However, the Tribunal may be concerned that the Applicant's current strategies revolve around avoiding unsupervised contact with children, noting that the purpose of the WWCC is to avoid the need for supervision.

92. The applicant submitted that this mischaracterises the applicant’s evidence, as the personal references relied upon show that he does interact with children, but not without first obtaining parental consent. The applicant submitted that avoiding online communications with children is an appropriate proactive measure in the circumstances.

92. Dr Watson was of the view that the applicant would not require any supervision with regard to the risk of child sexual offending in work or social contexts. The applicant’s treating psychotherapist, Mr G, an accredited mental health social worker, agreed with this finding.

Conclusion as to risk to the safety of children

94. The Tribunal is satisfied that the applicant has rebutted the presumption in s 28(7) of the Act and does not pose a real and appreciable risk to the safety of children. The Tribunal has considered the following in reaching this conclusion:

1. that the applicant's disqualifying offence is at the lower end of the range of objective seriousness,

2. the evidence from forensic clinical psychologist Dr Watson and the applicant that:

1. he has made prosocial decisions and has appropriate therapeutic supports in place for his mental health,

2. the applicant has developed insight into his offending behaviour, gained experience and shown maturation, and

3. the risk factors involved in the offending have been largely ameliorated,

provides confidence that it is unlikely that the applicant would repeat the conduct giving rise to the disqualifying offence, or any similar conduct, in future,

3. the applicant’s remorse, self-reporting and immediate admissions to the police in relation to the offence and the early plea of guilty,

4. the applicant’s lack of any other criminal history.

Reasonable person test: s 30(1A)(a)

95. As the Tribunal stated in DAI v Children’s Guardian [2017] NSWCATAD 308 at [90]-[91]:

The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires:

the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

In order to properly consider this test, a “reasonable person” would need know about the disqualifying offence, the circumstances surrounding the offence, the applicant’s entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him.

96. When considering a similar provision under the Victorian legislation, the Victorian Civil and Administrative Tribunal observed in OYJ v Secretary to the Department of Justice & Regulation (Review and Regulation) [2019] VCAT 33 at [94]:

Because sub-section 26A(4)(a) says “a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work” (emphasis added), and as a matter of human nature people are more cautious and concerned about their own child, than about others’ children, the subsection places a more onerous test on an applicant for an Assessment Notice, than if the subsection had said a reasonable person would allow “a child to have direct contact with the applicant …”.

97. The respondent submitted that the reasonable person would not allow their 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. The respondent relied on the circumstances of the disqualifying offence in support of this position: the young age of the victim, the extent of the messages, that the applicant chose not to end the messaging, that the breach of trust involved a child closely related to a friend. The respondent submitted that the reasonable parent would exercise caution when considering Dr Watson’s findings based on Static-99 actuarial risk assessment results that are not targeted to the applicant’s offence, and they would require further assurance that the applicant is a safe person.

98. The respondent submitted that the applicant has shown a lack of insight into his offending behaviour and raised doubts about whether he is able to behave appropriately with children in the future. The respondent submitted that, in summary:

1. Questions would remain for the reasonable person about the applicant’s ability to act protectively towards children, the robustness of the applicant’s risk management strategies in the context of child-related work (as he admitted under cross examination to engaging with persons online that he is sufficiently concerned may not over 18 such that he asks to check their identity documents), and whether he has demonstrated that he can respond appropriately if he is once again in a situation where there is sexualised behaviour from a child.

2. The references provided by the applicant are of limited assistance for the reasonable person test. Although the authors of the references knew of the indecent messages, they have not said that they have read them or knew the applicant’s role in them. As recently as February 2024 the applicant said that the messages were initiated by the victim. It cannot be disputed that applicant’s own communications led to an escalation in the messages he exchanged with the victim. Sexual innuendos from the victim did not account for what came back from the applicant.

3. A reasonable parent would have concerns for the applicant’s ongoing relationships. The applicant’s current partner only recently turned 18 towards the start of her relationship with the applicant. This means that there is an age gap of approximately 7 years between them.

4. In his desired field of social work, the applicant is more likely to engage with vulnerable young people, for example, with a child from out of home care – as the victim of the disqualifying offence was.

5. A reasonable person would be concerned about the applicant not taking his ADHD medication in 2023 for a six-month period, which in the applicant’s circumstances would ordinarily be a significant protective factor.

99. Considering each of these matters in turn:

1. The applicant gave evidence about his practices of checking the ages of the persons he is communicating with online where he has reason to suspect the person may not be over 18 years of age. Due to the nature of online communications, it is difficult to definitively conclude what prudence requires in this area, short of curtailing online communications altogether. Dr Watson rightly pointed out that there is nothing inherently problematic with connecting with other people online, it is rather about the applicant employing strategies to assess a person’s age, and there are no “red flags” or indicators of other illegal behaviours giving rise to concerns for the applicant more generally.

2. The applicant did not seek to justify or excuse his offending behaviour in any way before the Tribunal. The applicant did not dispute that sexual innuendos from the victim did not account for what he sent back to her and expressed remorse and regret for his actions. The applicant’s insight, commitment to rehabilitation and treatment, character references indicative of prosocial interactions with children and that parents known to the applicant trust him to care for their children unsupervised, are referred to earlier in these reasons at [87]-[88] and [58].

3. A reasonable parent may be cautious where the applicant commenced a dating relationship with a person who he met online, who has recently turned 18 years of age. However, there is nothing unlawful or untoward about this situation in and of itself.

4. It is true that the applicant is likely to engage with vulnerable young people should he pursue social work. However, it would also be reasonable to assume that the applicant would receive the requisite training in order to pursue such work during the course of his studies to become a social worker. Further, as an enabling order under the Act may not be made subject to conditions, the applicant should be assessed without undue regard to specific future work settings.

5. The applicant explained the reasons for the six-month period during which he was not taking his ADHD medication (a nation-wide shortage and the unavailability of his psychiatrist for an appointment). Dr Watson gave evidence that the change in the applicant since the offending was an equal part ADHD treatment and maturation over time. While there could be room for some concern, the applicant appeared to understand the importance of taking his ADHD medication for his wellbeing (acknowledging a “night and day difference”) and impressed the Tribunal with his commitment to maintaining his mental health.

100. In assessing whether a reasonable person would allow their 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, the Tribunal has regard to:

1. the circumstances of the disqualifying offence (occurring over one evening rather than an extended period, no meeting with the victim in person, no images were shared, the applicant was remorseful, self-reported to police and pled guilty),

2. the passage of almost seven years since the offence,

3. the absence of other criminal behaviour or misconduct,

4. that the event was isolated and otherwise out of character for the applicant,

5. the therapy the applicant has benefited from and is currently engaged in to address the underlying risk factors, and

6. the assessment of forensic clinical psychologist Dr Watson that the applicant is at low risk for future sexual offending (based on the Static-99 scores and the RSVP-V2 dynamic factors), together with her conclusion that he is not at imminent risk of sexual offending regardless of environmental contexts, and would not require any supervision with regard to the risk of child sexual offending in work or social contexts.

101. The Tribunal is satisfied that the first limb to s 30(1A) of the Act has been met.

Public interest test: s 30(1A)(b)

102. In relation to the public interest test in s 30(1A)(b) of the Act, it was stated by the Tribunal in ECQ v The Children’s Guardian [2021] NSWCATAD 217 (as cited by Davies J in Office of the Children’s Guardian v EQE [2022] NSWSC 871 at [58]):

[44]   In line with Hogan’s case, this Tribunal must assess the public interest in granting an applicant a clearance by reference to the purpose of the Act as a whole. The purpose can be ascertained from the object and paramount consideration of the Act as set out in ss 3 and 4, namely, the protection of children from abuse by ensuring that those who engage in child-related employment have a WWCC clearance.

[45]   When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY’s case at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary to the Department of Justice [2013] VSC 267 at [202] and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY’s case at [75].

103. In Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. 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.

104. The applicant referred to his "educational pursuits and goal to enter social work aim to improve societal welfare, highlighting the importance of rehabilitation and social service."

105. The respondent submitted that although there is a public interest in qualified individuals engaging in social work, such persons occupy significant positions of trust for vulnerable people, including children, and there is also a strong public interest in their character and judgment.

106. In considering the public interest test the Tribunal has regard to the subject matter, scope, and purpose of the Act, and specifically the paramount consideration in the operation of the Act in s 4. The Tribunal is satisfied that the applicant does not pose a real and appreciable risk to the safety of children (see [94]).

107. The Tribunal is satisfied that it is consistent with the public interest to permit the applicant to pursue his studies and goal to enter social work.

108. The Tribunal is therefore satisfied that it is in the public interest to grant the applicant a WWCCC.

109. The Tribunal is satisfied that the second limb to s 30(1A) of the Act has been met.

Conclusion

110. It follows that the Tribunal is satisfied that it is appropriate to make an enabling order declaring that the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence, and to order the Children’s Guardian to grant the applicant a WWCCC.

Order

1. The Tribunal declares that the Applicant is not to be treated as a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s 474.27A of the Criminal Code (Cth) that was found proven against the applicant in the District Court of NSW on 21 June 2018.

2. The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).

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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: 04 November 2024