GCP v Children's Guardian - [2025] NSWCATAD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GCP v Children’s Guardian [2025] NSWCATAD 9
Hearing dates: 23 October 2024
Date of orders: 09 January 2025
Decision date: 09 January 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
E Hayes, General Member
Decision:
The application for an enabling order is dismissed.

Catchwords:
ADMINISTRATIVE LAW – working with children check clearances – refusal on the grounds that the applicant had been convicted of a disqualifying offence – enabling order sought – criminal offence since repealed and replaced by new provisions – whether conduct ceased to be an offence – whether applicant is a disqualified person – whether Tribunal satisfied that applicant does not pose a risk

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Amendment) Act 1989 (NSW)
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Cases Cited:
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CXZ v Children’s Guardian [2020] NSWCA 338
Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241
M v M [1988] HCA 68; (1988) 166 CLR 69
Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:
Explanatory Note, Crimes (Amendment) Bill 1989
Second reading speech of the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, Attorney General, 6 June 2018, Hansard
Explanatory Note to the Crimes (Amendment) Bill 1989

Category: Principal judgment
Parties: GCP (Applicant)
Children’s Guardian (Respondent)
Representation:
Applicant (self-represented)
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2023/00442192
Publication restriction: Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victim or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

On 10 November 2023, GCP applied for a working with children check clearance pursuant to the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), nominating “Clubs or other bodies providing services to children” as the relevant child related employment sector. GCP was notified that his application was refused by notice of decision dated 16 November 2023.
The basis for refusal was that GCP was a “disqualified person” under the WWC Act because in 1988 he had been convicted of an offence identified as an “disqualifying offence” for the purposes of the WWC Act. The offence was indecent assault against a person who was under 16 years old.
GCP was notified that he was a disqualified person, and the respondent could therefore not grant him a working with children check clearance. GCP was also notified that he was barred from working with children for five years, that he could not make a further application for five years after the date of the notice without the permission of the respondent and he must not work in paid or volunteer roles that require a working with children check clearance. He was notified that he may be able to appeal to the Tribunal to review the bar and, if he was eligible to appeal, he could apply to the Tribunal for an enabling order so that he could obtain a clearance.
GCP made his application to this Tribunal on 6 December 2023. There is no dispute that he is eligible to appeal and that he made his application within the required period. This is an application made pursuant to s 28 of the WWC Act and there is no dispute that the Tribunal has jurisdiction to deal with this matter under the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).
In the grounds for the application filed with the Tribunal, GCP stated that he was seeking a review of the decision because the incidents that resulted in him being a disqualified person happened in February 1988, while he was depressed. There had been no criminal actions against him since this time, he was 79 years old, and he had been involved with children on various occasions while doing charity work with several voluntary organisations. He has several grandchildren and great grandchildren.
The hearing commenced by video link on 23 October 2024 at 10am but GCP was unavailable at that time and initially did not appear. The Tribunal made telephone contact with GCP in the morning, and he advised that he had not received notification of the hearing until the previous day because of difficulties with his email. GCP said that once he was notified of the hearing, he requested that the hearing be delayed until 2pm because he had to take his wife to the hospital in the morning. This would take the morning as he lived in regional New South Wales and the hospital was several hours away. Tribunal records reveal that the application to adjourn the matter was refused and GCP was notified of this by email. According to GCP, he did not become aware of this until he received the telephone call from the Tribunal in the morning. While GCP’s explanation was unsatisfactory in that Tribunal records indicated he had been advised of the hearing by notice dated 15 August 2024, the Tribunal agreed to delay the commencement of the hearing until the afternoon.
In summary, we could not discount GCP’s explanation and to refuse the adjournment would deprive him of the opportunity to give evidence and make submissions in support of his application for review. Notably, he had lodged documents prior to the scheduled hearing as directed by the Tribunal and had otherwise demonstrated a level of commitment to proceed with his application. The Tribunal was satisfied that the hearing could be completed that day, and the respondent did not object to the delay in the commencement of the hearing.
Prior to the scheduled hearing, the proceedings were listed for numerous directions hearings. The parties were directed to file and serve evidence and submissions in accordance with a timetable. The respondent filed its bundle of tender documents on 29 February 2024 and further evidence on 19 April and 22 October 2024. The evidence filed included documents provided to the respondent in response to requests for information made pursuant to s 31 of the WWC Act and documents produce under summons. These documents comprised documents provided by the Department of Communities and Justice, Wollongong Local Court, Wollongong District Court, NSW Police and various community and/or voluntary organisations. Non-publication orders were made by the Tribunal at these directions hearings.
GCP relied on a statement dated 15 August 2024, a copy of a letter provided to the lawyers for the respondent dated 18 January 2024, a character reference dated 6 June 2023 from a senior official and member of the X Club, which was provided to the respondent by GCP to support his application for the clearance, an email dated 22 August 2024 from an official of the X Club containing details of GCP’s current role and a psychologist report from Dr Karl Wiener, clinical and forensic psychologist, dated 1 August 2024. GCP gave oral evidence at the hearing and was cross examined. Dr Wiener also gave oral evidence at the hearing.
The Tribunal has determined to dismiss GCP’s application for an enabling order. Our reasons follow. The applicant is known by the pseudonym of GCP and we have taken care in the preparation of these reasons to anonymise any references that may tend to disclose his identity or the identity of the family.

Background

The applicant, GCP, is an 80-year-old man who resides in regional New South Wales with his current partner. He was previously married, and his first wife passed away in 2022. They were married for over 56 years. There are two children from the marriage, a daughter and a son. His children are married and have adult children and young grandchildren. GCP has 6 grandsons, a granddaughter and 8 great grandchildren. He also has 4 foster grandchildren and two foster great grandchildren. His daughter lives interstate and his son lives nearby. GCP is involved in the X Club. He has been involved in the X Club for many years and has held, and continues to hold, senior roles in the local Chapter. He applied for a working with children check clearance on the understanding that he may need the clearance to continue in his voluntary work with the X Club.
On 15 December 1987, GCP was charged with the offence of indecent assault pursuant to s 61E(2) of the Crimes Act1900 (NSW). The complainant was GCP’s daughter who was 12 years old at the time. She previously made four allegations against GCP over a period of several months, the details of which are set out later in these reasons. There was a fifth allegation made that GCP admitted. She was interviewed by NSW Police, as was GCP and his wife, who was also the mother of the child.
It is apparent that the records provided to the Tribunal relating to the investigations and court proceedings are incomplete given the passage of time, although according to a fact sheet filed with the District Court by NSW Police dated 9 February 1988, “no further action” was taken in respect of certain allegations made by GCP's daughter because GCP and his wife denied the allegations made and there was no medical evidence and a lack of corroboration to support the claims made. GCP was charged in respect of one of the allegations because he had made an admission about the offence in a signed statement to police. There was no transcript of a hearing or any sentencing remarks but it is apparent the allegation admitted by GCP was the subject of the charges and conviction.
GCP was convicted on 11 February 1988 of the offence of sexual assault, category 4 (indecent assault and act of indecency) under s 61E of the Crimes Act, and he was placed on a good behaviour bond for three years. He was directed to place himself under the supervision and guidance of the Wollongong community welfare centre and to continue and cooperate with the counselling service prescribed by the centre.

Statutory framework

The WWC Act establishes a statutory scheme to protect children by not permitting certain person to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances. This is the sole object of the WWC Act as set out in s 3. Section 4 provides 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 the WWC Act.
Section 5B of the WWC Act provides that a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.
The term child-related work has the meaning in ss 6 and 7 and involves direct contact by the worker with a child or children where that contact is a usual part of and more than incidental to the work. Section 8 provides that a worker must not engage in child-related work unless the worker holds a working with children check clearance of a class applicable to the work. Section 12 provides for two classes of working with children check clearances, namely volunteer clearances, authorising workers to engage in unpaid child-related work, and non-volunteer clearances, authorising workers to engage in paid and unpaid child-related work. It should be noted that there is no evidence GCP’s role with the X Club has required him to engage in child-related work, but he seeks the clearance in the event this is required.
Section 13 provides that a person may apply to the respondent for a working with children check clearance. The application must specify the class of clearance applied for. A person who is refused a working with children check clearance or whose clearance is cancelled is not entitled to make a further application for clearance until five years after the date notice of the refusal or cancellation was given to the person or unless a further early application is permitted: s 13A of the WWC Act.
Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in Schedule 1 to the WWC Act apply to the person. Schedule 1 identifies the assessment requirement triggers. They comprise cases where there are proceedings and/or convictions against a person in relation to certain criminal offences, findings of misconduct against a person involving children, notifications of reportable conduct and negative notices in other jurisdictions. Section 15 provides that the respondent must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of the children if the respondent becomes aware that the applicant, or holder, is subject to an assessment requirement. Section 15(4) sets out the matters that the respondent may consider when making an assessment.
Section 18 of the WWC Act sets out how the determination of applications for clearances must be made and 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) 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.
(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. offences

Clause 1 of Schedule 2 identifies the offences that are specified to be disqualifying offences for the purposes of s 18(1) of the WWC Act. The offences include murder, manslaughter of a child, an offence involving intentional wounding of, or intentional causing of grievous bodily harm, to a child by an adult who is more than three years older than the victim, rape or attempted rape. Relevant to the facts of this case, an offence under s 61E of the Crimes Act is an offence specified in cl 1(1)(d) of Schedule 2. The respondent found that GCP was a disqualified person by reason of this conviction and refused his working with children check clearance under s 18(1).
Clause 2 provides:

Excluded offences
An offence is not specified for the purposes of this Schedule if it was an offence specified in this Schedule at the time of its commission and the conduct has ceased to be an offence in New South Wales.

Section 61E of the Crimes Act was repealed by the Crimes (Amendment) Act 1989 (NSW), which came into effect on 21 December 1989. An issue that therefore arises is whether GCP is a “disqualified person” within the meaning of s 18(1), given that the original offence for which he was convicted has been repealed. This is a critical threshold issue.
This was not an issue raised by the respondent in written submissions prior to the hearing but the issue was discussed at length in oral closing submissions. Our findings on this matter are set out later in these reasons.
Section 27 provides that a person who has been refused a working with children check clearance by the respondent may apply to the Tribunal for an administrative review of this decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act)
Section 28 relates to enabling orders and has a different jurisdictional basis. Section 28 provides:

28 Orders relating to disqualified and ineligible persons
(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor.
(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor.
(3) A disqualified person may make an application under this section only if-
(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.

Section 30 sets out the matters the Tribunal must consider in determining applications under sections 27 and 28. Section 30 relevantly provides as follows:

(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.

If the Tribunal is considering making an enabling order, it must also consider the supplementary tests contained in s 30(1A) which provides:

(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.

Accordingly, when considering whether an enabling order should be made, the Tribunal must be positively satisfied, as required by s 28(7), that the applicant does not pose a risk to the safety of children. In making this determination, the Tribunal must have regard to the mandatory considerations in s 30(1). Before an enabling order can be made, the Tribunal must also be satisfied about the supplementary tests in s 30(1A) of the WWC Act. If GCP does not displace the presumption and satisfy the Tribunal that he does not pose a risk, it is unnecessary to consider the supplementary tests.

Outline of Evidence

Evidence about the offending

The evidence before the Tribunal comprises the respondent’s tender bundle of documents filed pursuant to the Tribunal’s directions. These documents include extracts of documents in relation to GCP’s alleged criminal offending, which had been provided by NSW Police and the Courts. The documents also include transcripts of interviews of GCP, his wife and his daughter and statements and other correspondence relating to the investigation, charge and conviction of the offence under s 61E of the Crimes Act.
Extracts of the police brief were provided from the Wollongong Local Court. According to a statement signed by GCP’s daughter dated 3 July 1987, about four months prior she was in the bed with her parents and her mother got out of the bed to make breakfast and told the daughter to give her father cuddle. The daughter stated that GCP then put his hand inside the top of her pants and put his fingers inside her and said I love you. He did this for a short time and then she left to go out and have some breakfast. The daughter stated that a few weeks later the same thing happened again. She stated that the third time it happened was a few weeks before the statement was made when she was in her own bed and her mother again told her to go and give her father a cuddle. She was tired and did not want to do so but her mother insisted and so she went into the bed with her father while her mother was making breakfast and her father again put his hands down her pants and his finger inside her vagina. This happened a fourth time in similar circumstances about a week before the daughter told the school counsellor about this. She said that she told the counsellor because she did not want her father to do this to her anymore. The counsellor reported this to authorities.
There is transcript of an interview between a detective and GCP at the local police station on 9 July 1987. At the beginning of the interview, the detective notifies GCP that he is investigating a complaint into the sexual assault of his daughter and gives him a warning that he is not obliged to answer the questions unless he wishes to do so but if he does, his answers will be recorded and may be later used in evidence. In the interview, the detective raises the allegations with GCP. He denied the allegations and, when asked why his daughter would make up these allegations, he said that he could think of no logical reason of why she would do this. He stated that the only thing that happened was that sometime in the second week of June 1987 when he was applying cream to a rash on her leg and near vagina area, he may have touched her vagina. His wife was present during this, but she was busy. He and his daughter were in the lounge room watching TV at the time. This reason why he had been rubbing the cream was because his daughter had complained about itching on her legs, and it was suggested by his wife that they should purchase the cream to rub on the daughter’s legs. He did this on two occasions and on the second occasion it was near her knees.
GCP was asked by the detective whether he had ever touched his daughter’s breast. He stated that he was rubbing cream into his daughter’s neck and after she stood up, her top came down and he saw her breasts. He noticed the white marks on her breast, and he touched her with one finger pointing to her breast. When asked about the circumstances leading to this incident, he said that he had been rubbing liniment into her neck and shoulders. His wife was present during this, but she was on the lounge, otherwise occupied.
There is transcript of an interview between the detective and GCP’s wife (and the mother of the complainant) at the police station on 9 July 1987. GCP’s wife was asked about the incident where she reportedly told her daughter to get in their bed and give her father a cuddle. She said she may have said this. She stated that her daughter had not said anything to her about the incident as alleged and she did not appear to be upset. She said that her daughter had never spoken to her about being sexually interfered with. In relation to the question of why her daughter would make up these allegations about GCP, she said she “did not know why she was doing it” but there had been an article her daughter had been reading the New Idea about the horror of child abuse. She also said that her daughter watched the TV and shows such as A Country Practice had episodes about child abuse on the TV. GCP’s wife said she did not know why her daughter “had it in for [GCP]”. She was asked about whether her husband had ever told her of an incident when he had touched their daughter's vagina. In response, GCP’s wife said that the family had been on a long walk and her daughter had told them that she was sore. GCP purchased some cream and rubbed the cream on his daughter's legs near her upper thigh. She said that GCP could have touched their daughter on the vagina, but it would not have been intentional.
GCP’s wife was also asked whether her husband ever touched their daughter on the breasts. The wife stated that he had pointed out to her a spot on their daughter’s breast, and he may have touched her unintentionally. She did not see him do this, but she knew about this because he told her about this after authorities stepped in. GCP's wife originally said that she was in bed when this occurred but later said she was sitting on the lounge. When she was questioned about this, she said she had been sitting on the lounge and then got up to bed. It was at that stage she saw her husband point to her daughter's bare breast. She then went to bed. She stated that your husband had been rubbing cream into his daughter's neck and shoulders and that she had seen him do this. She was on the lounge knitting. She said that when this was first raised with her by authorities, she “knew that it wasn't true and that he wouldn't do it”. She referred to the fact that she was hoping that their daughter would be returned to live with them. There is no detail about this included in the records provided by the respondent and it is possible that GCP’s daughter was removed briefly. It is also apparent that GCP was removed from living in the house for a period.
Included in the material is a letter from GCP’s lawyers dated 1 October 1987. The letter enclosed a signed statement made by GCP relating to the record of interview. It was further stated that GCP’s lawyers “were instructed to advise” that GCP would not make any further statement nor answer any further questions or take part in any further record of interview in connection with the subject matter of the interview.
The statement attached to the letter was dated 1 October 1987. It was noted that GCP wished to amend sections of the answers that he had given to the questions recorded in the record of interview. He stated that there were two occasions when he applied cream to a rash on his daughter’s legs and near her vagina area. On the first occasion, his wife had finished knitting and went to bed before he finished applying the cream. This event happened in the lounge room where he and his daughter had been watching television. On the second occasion his wife was already in bed and his daughter was in her bedroom. She called him in and said she couldn't sleep with the itch on her legs. He then applied the cream. In relation to the incident when he touched his daughter's breast, GCP stated that his daughter was adjusting her clothes before he started to rub in the liniment. It was then that he saw the white marks and touched her with one finger pointing to those marks and asked about them. He stated that his wife was present at that time and also looked at the white marks. He started to rub the liniment into his daughter’s neck and shoulders and while he was doing this, he his wife went to bed. When he finished rubbing the liniment, his daughter stood up and the front of her top fell down exposing her breasts. He fondled her breast with one hand, and this lasted a couple of minutes and went to bed.
The detective who had undertaken the interviews provided a statement dated 16 December 1987. He referred to the interviews that he had conducted on 9 July 1987. He stated that after the interview with GCP, he told him there was insufficient evidence to charge him at that time but that he intended to make further enquiries about the matter and may have to contact him again. GCP reportedly said that he was not going to say anything more about this on the advice of his solicitor and he did not wish to make any further statements.
The detective further stated that as the as a result of a letter being received at the police station (the date of the letter is not identified) he had a further conversation with GCP and met with him at the police station on 15 December 1987. At the meeting at the police station, he told GCP that he had just received a letter. It was confirmed that the letter was from GCP’s solicitor, the statement that was signed by him and GCP agreed that the letter contents and statement had been authorised by him. The detective told GCP that he had made certain admissions and that he was going to be charged with indecent assault. GCP said that he understood but he was not going to say anything more about the matter.
The charge sheet records that GCP was charged with indecent assault under s 61E(2) of the Crimes Act on 15 December 1987. The particulars of the charge were that between 1 June and 25 June 1987, GCP committed an act of indecency with his daughter who was then under the age of 16 is old. He was released on bail on his own undertaking on that day.
There is a police fact sheet dated 9 February 1988 which was filed with the Court. Given the paucity of the records, it is useful to extract the fact sheet in its entirety as follows:

1.   As a result of information supplied to police by officers of the Youth and Community Services, the victim in the matter was interviewed by way of a statement. The victim who is the daughter of the prisoner was interviewed on 3 July 1987. The victim claimed she had been sexually assaulted over a period of time by the prisoner.
2.   On the 9 July 1987 the prisoner was interviewed at [location] police station by way of recorded interview. The prisoner denied the allegation. The wife and mother (prisoner and victim) was also interviewed by way of record of interview to obtain some corroboration of the matter and she also denied any knowledge of the allegation. Due to no medical evidence lack of corroboration no further action was taken at that time.
3.   As a result of a letter received from the solicitor appearing for the prisoner, being sent to the police station regarding the matter, certain admissions were made regarding the allegations made. On 15 December 1987, the prisoner was again spoken to at [location] police station. The prisoner confirmed the letter from the solicitor, and that he had authorised and signed the statement which included the admission of the indecent assault upon the victim. The prisoner again denied any sexual assault.
4.   The prisoner was then charged with the indecent assault upon the victim (his daughter). The prisoner on the advice of his solicitor declined to make any further statement in the matter.
5.   Information has been received that the young person, the victim of the offence, has since been returned to the family home. It has been indicated that certain undertakings have been made by the mother of the victim, and the prisoner, the father of the victim. It has been indicated that the officers of the Youth and Community Service are oversighting this ongoing situation.

The Court file includes a court report dated 9 February 1988 provided by a psychologist. The psychologist stated that he had been counselling GCP in connection with sexual assaults on his daughter. He noted that GCP first consulted him on 3 August 1987 and has continued fortnightly in counselling since that date, initially with himself and thereafter with one of the other counsellors. He also noted that from the beginning of the year he had been seeing the family being GCP, his wife and their two children. The psychologist stated as follows:

My view is that it is highly unlikely that there will be a recurrence of the behaviour by GCP that led to the charge of sexual assault against him, however I feel there are underlying factors within the family that led to this behaviour which I have as yet been unable to positively identify and there is therefore a need to continue the family therapy which is progressing satisfactorily so that the family is once again functioning as a unit.

There were no other documents available about the conviction and any follow up treatment or monitoring. Given the length of time that has elapsed, this is not surprising.

Other documentary evidence

The respondent provided a law enforcement summary document for GCP for the period November 1994 to November 2023 provided by NSW Police. There are 11 events recorded involving GCP. The events in 1994 and 1997 do not include details of the events. Three of the events record GCP is being a “victim” and five events record him as being a “person of interest”. Four relate to traffic offences and one, being the most recent event, relates to firearms offences.
In addition, the respondent provided extracts from the computerised operational policing system reports (COPS) for the period 1 January 1994 to 28 February 2024 for GCP. The COPS reports were provided by NSW Police under summons. The COPS reports referred to a break and enter in 1994 (there is no suggestion that GCP was a person of interest in relation to this), a report of stealing at the X Club disco in 1997 (which may have been reported by GCP), traffic offences involving GCP in 2005 and 2013 and reports of stealing, lost property or break and enter offences in 2010, 2014 and 2018 where GCP was either the victim or a witness. The most significant issue involving GCP was a potential firearms offence in November 2023. It is recorded in the COPS report that GCP left a rifle bolt and ammunition in a canvas bag in his vehicle unsecured and that when he returned to the vehicle, it had been broken into and these items had been stolen. It is noted that police discussed with GCP the importance of safe storage of firearms and ammunition. He was not charged but was given a warning.
In summary, it is apparent from the information provided by the respondent that there is no record of criminal offending by GCP, or complaints made against him, over a period of 30 years from January 1994.
The respondent requested information about GCP from community organisations pursuant to s 31 of the WWC Act. According to an email provided on 11 February 2024 by a wildlife rescue and rehabilitation organisation, GCP was a volunteer of the service which he joined in 2013. He had not been the subject of any disciplinary proceedings during this period and there were no complaints or negative reports against him. The identity of the organisation has not been revealed in this decision is it may disclose the identity of GCP. An email from the X Club dated 29 January 2024 noted that GCP had been a member of the [location] X Club and X Club international between 1 October 1984 and 30 September 2002 after which time he relocated his membership to another X Club in the location where he now resides. He is currently a member of the X Club in that location. From 1 July 2008 to June 2024, he has held senior roles in the Club, including [redacted]. There was no record of complaints or disciplinary proceedings against him during this period.

Evidence provided by GCP

GCP provided a witness statement, correspondence from an official from the X Club about his role and an experts report from a clinical and forensic psychologist. He also gave oral evidence and provided oral submissions.
According to the official from the X Club, GCP is not engaged in performing work with children, however, there are many roles where he may have interaction with members of the public more generally, including working on the cash register at the local barbeque. She states that to her knowledge, GCP has chosen not to attend any X Club projects that involved contact with children under the age of 18 years old. She states that GCP has been known to her since March 2009 and she has found him to be helpful and always ready to assist when needed. He was a “genuinely nice person” and a “wonderful member of the X Club exemplifying the X ethics”.
According to a character reference from a senior member of the X Club, who will not be named because it may disclose the locality of the X Club and possibly GCP's identity, this person has known GPC since the early 2000s. He states that he is aware of an incident happening in the late 1980s where GCP was charged and found guilty in a child related issue. He noted that GCP had been a valuable member and had had held various senior positions within the club. He had received several awards through the X Club, again which will not be named in the event they disclose GCP’s identity. He notes that GCP had worked on numerous projects but none involving direct involvement with children. Any contact would be incidental. He further states that for as long as he is known GCP his conduct has been exemplary, and he is a respected team member.
GCP provided a written statement dated 15 August 2024. He stated that he married his wife in 1966 and they were together until he took her to her nursing to the nursing home in 2017 where she lived until she passed away. He states that they have two children who have adult children. He has grandchildren, great grandchildren and foster grandchildren and great grandchildren. GCP outlined his work with the X Club and initially the Masonic Lodge. He also provided details about various community awards that he had received for his work in the community over the years.
GCP gave oral evidence at the hearing and was cross examined by the legal representative for the respondent.
GCP said that he wanted a working with children check clearance in case he needed it. For instance, there was a snake at a childcare centre once and he was not able to go there to remove the snake. Sometimes there are voluntary X Club events where children involved, such as the markets and he may need a clearance for this.
GCP was cross examined about the allegations of sexual misconduct made against him by his daughter. He denies the allegations that were made and said that his daughter's friend had been assaulted did not complain and this may have motivated his daughter to complain. He admits touching his daughter’s breast and rubbing cream near her vagina. He pleaded guilty to the conduct for which he was convicted. He said that he could not recall being in bed with his daughter and putting his hands in her pants and denied that he had ever inserted his fingers into her vagina. He was asked about the incident in relation to his daughter’s breast and, in particular, what he meant by the word “fondled”. He said that he could not recall because it happened such a long time ago, but he said that he touched her breasts either once or twice. He agreed that it was possible that he had fondled her breasts for a couple of minutes. GCP was asked whether his son was aware of the allegations that had been made against him. This was relevant because he drives his granddaughter to gymnastics weekly. GCP said that he presumed so. They had never told him, but his son and daughter are close he thinks that he may know. The conviction was never brought up or discussed.

GCP said that his daughter lives in Queensland and she came down to visit him for his 80th birthday. He visits her annually and he stays at her house. They talk on the phone regularly. When the allegation was first made, he was not allowed to return home, and he stayed in a caravan park. This was for about a month. He went home after this and said that there were no issues after this.
GCP provided the Tribunal with a psychology report from Dr Karl Wiener, clinical and forensic psychologists, dated 1 August 2024. Dr Wiener referred to the material with which he had been briefed, which included all documents in the respondent’s tender bundles. Dr Wiener reportedly examined GCP's criminal history and the interview transcripts and statements. He notes that the statement of GCP's daughter relates to a narrative about four allegations that she makes against GCP which is different to the admissions made by GCP in his statement to police. Dr Wiener notes that GCP informed him he saw a psychologist for two to three sessions after he was charged in 1987 and they reportedly discussed his offence and explored boundary and privacy issues to ensure the inappropriate behaviours for which he was charged and convicted did not happen again.
Dr Wiener outlined the relationship history between GCP and his wife. He noted that GCP explained that they had a supportive relationship and rarely had disagreements, although they were not sexually matched, and his wife had reduced sexual interest. This became evident from 1984 onwards. His wife had a brain haemorrhage in 2007 which resulted in impaired cognitive functioning. GCP looked after the house and cared for his wife. In 2017 his wife's condition deteriorated and she was placed in a nursing home, where she remained until her death in October 2022.
Dr Wiener noted that GCP reported that both his children were doing well and that he regularly drives his granddaughter to gymnastic lessons once a week. GCP's daughter lives in Queensland and has three adult sons. He reportedly has regular telephone contact with her, and they meet up annually. GCP has developed a new relationship with a new partner and they live together.
Dr Wiener undertook a clinical and forensic assessment. He notes that GCP is physically and mentally fit, maintains a healthy lifestyle and was socially and physically active. He was involved in multiple voluntary activities and is currently in a one year romantic and socially fulfilling relationship. Relevantly, Dr Wiener it noted as follows:

[GCP] indicated that since the historical offences, he has become more aware of boundaries and privacy issues. He stated that although they do not talk much about the incident, [GCP] set boundaries regarding his conduct with his daughter once he was allowed back to the family home. That is, he stopped walking into the shower while she showered, did not permit his daughter to lie on his bed and sat independently rather than allowing her to sit on his lap.

Dr Wiener noted that there were there was no criminal history of sexual or offences of a violent nature, although he noted GCP told him that on his 50th birthday he watched some pornographic videos, but he did not like them he does not use them to obtain sexual pleasure.
According to psychometric testing undertaken by Dr Wiener, GCP does not show any symptoms indicative of depression, anxiety or stress.
Dr Wiener administered a test known as the inventory of offender risk, needs and strengths (IORNS) on 26 July 2024. He reports that the IORNS test is a predictive measure of risk and the assessment of risk factors. It allows for more effective treatment and supervision as it is assessing dynamic risk/need and protective variables and assists supervisors in prioritising offender risk needs for monitoring. In summary, his assessment noted as follows:

GCP produced a valid profile, and he sees himself in a positive light and considers himself relatively free from personality scores.

His overall risk index is 40 percentile which suggests that he is at low risk of reoffending based on his reduced risk needs and high protective strengths measures. This overall risk profile is a combination of GCP’s static risk index, his dynamic needs index and his protective strength index. GCP’s static risk index is within the average range. His dynamic needs index suggested that GCP's level for treatment and supervision needs is low. Individuals with a low dynamic needs index are less likely to reoffend given their low level of criminal orientation and attitudes, good self-esteem and interpersonal functioning, low hostility and physical aggression. They are unlikely to be negatively influenced by family and friends. GCP has high protective strength index which suggests sufficient protective strength against reoffending.

Dr Wiener attached the more detailed scales and subscales in relation to GCP's index scores but notes that GCP tends to take responsibility for his criminal behaviour and is willing to make effective positive behavioural changes. Dr Wiener reports that this was demonstrated by his willingness to implement changes around the conduct towards his teenage daughter after his conviction.

Dr Wiener sets out a detailed evaluation and opinion. He notes, based on a self-report by GCP, that he has a positive relationship with his now adult daughter, which is demonstrated by their monthly phone contacts and annual visits. He noted that his clinical assessment did not detect any mental health issues at the time of evaluation and his assessment indicated that GCP was an emotionally stable self-confident man with good prosocial attitudes. According to Dr Wiener, GCP has strong protective factors that may have assisted him in his conduct with members of his local community and he has a strong interest in volunteering. Dr Wiener notes that GCP has been re-partnered for the past year and that there are social benefits from the camaraderie and companionship of this relationship. He notes that GCP told him he believes his voluntary activities with the X Club would be severely impacted if he was not able to obtain a working with children check clearance. He could still attend the clubs a guest but GCP believes he would not be able to provide voluntary services.
Relevantly, Dr Wiener reports as follows:

12.6   It is my opinion that in the light of the available evidence and my assessment, GCP is unlikely to reoffend against minors.
12.6.1   The evidence suggests that since the index events in 1987, GCP has made changes after his conviction and is more concerned about boundaries, personal space and privacy issues.
12.6.2   Apart from the 1988 conviction, there is no further criminal history or outstanding charges relating to offences against minors.
12.6.3   Given that [GCP’s] offence was an intra-familial sexual assault on his teenage daughter, research suggests that one needs to consider the prevailing family dynamics at the time as intra-family sexual assault characteristics are different from extra-familiar characteristics. That is, intra-familial offenders are less likely to have paedophilic orientations but tend to compensate for a dysfunctional relationship dyad. At the time of the offence in 1987, GCP reported sexual relationship issues as his wife showed declining sexual interest. Despite this issue, GCP seemed disciplined to take to make serious conduct changes by being cognisant of boundary matters, his daughter’s personal space and her privacy. Given [daughter’s] demonstrated emotional strength in reporting the assault, it is my belief that GCP’s daughter would have continued her reporting if the abuse had continued.
12.6.4   GCP’s is an active member is local community and is engaged in various voluntary activities.
12.6.5   GCPS re partnered in a reported satisfying romantic relationship.
12.6.6   GCP’s psychometric assessment suggests that he has low dynamic needs and strong protective factors, which is not normally seen in people with a history of recidivist behaviours, including sexual assault behaviour against minors.

Dr Wiener was cross examined by the legal representative for the respondent. He was asked whether, in coming to the view that GCP was unlikely to re-offend against minors, he had relied on the conclusion that GCP’s denials about the other more serious allegations were accurate. Dr Wiener said that he noted that there were very different accounts given by GCP and his daughter. He said that he challenged GCP about the account given by his daughter and he was adamant in his denial. Dr Wiener noted that while the allegations were very different, he took into account his current assessment of GCP's current circumstances when he made his assessment about risk. He took into account that GCP had introduced different strategies and boundaries on his return to the house. He also took into account that there had been no subsequent allegations made against GCP and he believed that GCP’s daughter would have been proactive in making those allegations. He took into account that the allegations and offences took place a long time ago and noted that GCP denied that he was sexually aroused by the incident.
Dr Wiener said he had regard to the steps that GCP taken since his return. When asked whether he took into account the fact that there may have been digital penetration of his daughter, Dr Wiener said that GCP had put in place strategies to ensure that he was not alone in bed with his daughter and therefore this would lessen any risk. Dr Wiener acknowledged that there could be risk even if criminal offending was not established and this could be through emotional abuse. He also acknowledged that his assessment that GCP would be unlikely to reoffend against minors was not, and could never, be a guarantee as there is always a possibility of re-offending. On the question of whether the mother's involvement had seemingly encouraging the intimate relationship, Dr Wiener said he could not speculate on these matters.

Consideration

Having regard to the evidence and submissions made in the proceedings, the issues for determination are:

Is GCP a disqualified person for the purposes of the WWC Act?

If so, should an enabling order be made under s 28 of the WWC Act?

Is GCP a disqualified person?

As noted, GCP was convicted in February 1988 of the offence of sexual assault, category 4 (indecent assault and act of indecency) under s 61E of the Crimes Act. Section 61E is an offence specified in cl 1 of Schedule 2 as a disqualifying offence, although it was repealed in 1989.
Clause 2 of Schedule 2 provides that certain offences are “excluded offences” if the offence listed in cl 1 was an offence at the time of its commission but the conduct has ceased to be an offence in New South Wales. The exclusion focuses on the conduct which constituted the original offence and not on the offence. It is therefore necessary to consider whether the conduct constituted by the original offence under s 61E continues to be an offence in New South Wales.
The respondent submits that even though the offence under s 61E of the Crimes Act has been repealed, the conduct described in the section has not ceased to be an offence in New South Wales and, accordingly, GCP remains a disqualified qualified person for the purposes of s 18 of the WWC Act.
At the time GCP was convicted of the offence, s 61E of the Crimes Act provided as follows:

61E Sexual assault category 4—indecent assault and act of indecency
(1) Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to imprisonment for 4 years.
(1A) Any person who assaults another person who:
(a) is under the age of 16 years, and
(b) is (whether generally or at the time of the assault only) under the authority of the person,
and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to penal servitude for 6 years.
(2) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with that or another person, shall be liable to imprisonment for 2 years.
(2A) Any person who commits an act of indecency with or towards a person who:
(a) is under the age of 16 years, and
(b) is (whether generally or at the time the act is committed only) under the authority of the firstmentioned person,
or who incites any such person to an act of indecency with that or another person shall be liable to imprisonment for 4 years.
(3) For the purposes of this Act, a person who incites a person under the age of 16 years to an act of indecency, as referred to in subsection (2), shall be deemed to commit an offence on the person under the age of 16 years.

This provision has since been repealed by the Crimes (Amendment) Act 1989 (NSW), which came into effect on 21 December 1989. According to the Explanatory Note to the Crimes (Amendment) Bill 1989, the object of the Bill was to revise and simplify laws relating to sexual assault and empower courts to impose pecuniary penalties for indictable offences. Sections 61A – 61G were repealed and these provisions were replaced with new provisions.
Since this time there have been further amendments to the Crimes Act, for instance, through the Criminal Legislation Amendment (Child Sexual Abuse) Act2018 (NSW). Relevantly, a new offence of “sexual touching” was inserted into the Crimes Act in 2018 which was intended to update the statutory language of “indecency”, as explained by then Attorney General Mark Speakman in the second reading speech of the Criminal Legislation Amendment (Child Sex Abuse) Bill 2018, 6 June 2018 at Hansard:

Importantly, these amendments will also address the fact that some offences use the outdated terminology of indecency. For the purposes of offences against both adults and children, the conduct currently covered by the offences of indecent assault and acts of indecency will be covered by the offences of sexual touching and sexual act.
This more modern and more easily understood terminology is defined in a new subdivision 1 in a way that reflects the core of the common law meaning of indecency. Sexual touching will cover contact offences that involve some form of physical contact with the victim... The penalties for the sexual touching offences are the same as for the existing indecent assault offences.

As a result of the 2018 amendments, certain offences under the Crimes Act were replaced with new offences, focussing on child sexual abuse. As is clear from the Explanatory Notes for the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, the objects of the Bill were to enhance protections for children, create new offences in relation to risks and child abuse and, relevant to the issues in this case:

(b) to replace offences of indecent assault and act of indecency with offences of sexual touching and sexual act and to create a new offence of sexually touching where the alleged victim is a young person under the special care of the accused person.

According to the Explanatory Note, the offence of “indecent assault” was replaced with the offence of sexual touching under s 61KC and new offences were created for sexual touching of a child under 10 years old (s66DA) and sexual touching of a child between 10 and 16 years (s 66DB).
Section 66DB of the Crimes Act provides as follows:

66DB Sexual touching—child between 10 and 16
Any person who intentionally:
(a) sexually touches a child who is of or above the age of 10 years and under the age of 16 years, or
(b) incites a child who is of or above the age of 10 years and under the age of 16 years to sexually touch the person, or
(c) incites a child who is of or above the age of 10 years and under the age of 16 years to sexually touch another person, or
(d) incites another person to sexually touch a child who is of or above the age of 10 years and under the age of 16 years,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.

The conduct which constitutes this offence includes intentionally sexually touching a child between the age of 10 and 16. The expression “sexual touching” is defined in s 61HB of the Crimes Act in to mean “a person touching another person with any part of the body or anything else in circumstances where a reasonable person would consider the touching to be sexual”. Matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include whether the area of the body touched or doing the touching is the person's genital, anal or breast area and whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification.
The respondent contends that if a narrow construction is adopted in relation to the exclusionary provision in cl 2, the focus would be on the question whether the elements of the repealed offence are the same as or in similar terms as any current criminal offences. A broader construction is to consider whether the conduct that was said to constitute the original offence is conduct that would constitute a criminal offence at the time of the decision.
One of the difficulties is there is uncertainty as to the precise conduct on which the conviction was based, although it is apparent from the documents provided by the respondent that the conduct involved fondling his daughter’s breasts. She was 12 years old at the time.
According to records provided by the respondent, GCP was convicted under s 61E(2) of the Crimes Act. The elements of s 61E(2) are to commit an ‘act of indecency’ with or towards a person under the age of 16 years old. This term was not defined in the Crimes Act at the relevant time. According to the Court of Appeal in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241 (per Basten JA at [7], consistent with Campbell JA at [39]):

It is well-established that identification of an act as indecent is an objective question determined by reference to the standards of decency held by right-thinking members of the community.

The respondent submits that the disqualifying offence under s 61E(2) now constitutes an offence under s 66DB and that the element of “an act of indecency” is captured by the description of “sexually touching”. We accept this submission.
There are necessarily differences in the wording of the two offences because the new offence of “sexual touching” has adopted modern terminology and is now defined under the Crimes Act by reference to specified conduct whereas the offence of an “act of indecency” was not defined but was interpreted by the courts to have a well-established meaning by reference to community standards. As such, comparing the elements of the offences is not an obvious and easy exercise and the assessment for the purposes of the cl 2 exclusion may not always lend itself to the so-called narrow approach. The purpose of the cl 2 exclusion is to take into account the fact that some applicants for a clearance will have been convicted of offences many years ago and, given the passage of time, there may be changes in community expectations about the criminality of certain conduct such that conduct that was criminally liable many years ago may no longer be considered by the community and the legislature to be criminal or even wrongful in nature. To take a purposive approach to the construction, we have considered the elements of each offence and have made an assessment about whether the conduct alleged in the 1988 offences would be an offence under the current provisions of the Crimes Act.
In the present case, touching a child on the breast would fall within the definition of “sexual touching” in s 61HB and thereby would be an offence under s 66DB of the Crimes Act.

Accordingly, we are of the view that the fact that s 61E(2) has been repealed does not exclude GCP’s conviction for the purpose of assessing whether he is a disqualified person under s 18(1) of the WWC Act. We therefore find he is a disqualified person and he can only obtain a working with children clearance if an enabling order is made under s 28 of the WWC Act.

Should an enabling order be made?

Submissions

GCP submits that an order should be made. The offence was over 35 years ago, he has not been convicted of any other offences and there have been no other complaints made against him, he has had a continuing and good relationship with his children and grandchildren for many years, his conviction was an aberration, he has worked for many years in the community in voluntary roles and there may be circumstances where he needs to have a clearance but he may not be able to undertake those roles because of requirements or, at the very least, expectations, that he has a clearance. There is a public interest that he be able to continue in these roles. He is not a risk and has obtained an expert opinion in relation to this matter. GCP submits that enabling order should be made in these circumstances.
The respondent submits that in an application for an enabling order by a disqualified person, the Tribunal can only make the enabling order if positively satisfied that the applicant does not pose a risk to the safety of children. In making this determination, the Tribunal must have regard to the mandatory considerations set out in s 30(1). If satisfied that GCP does not pose a risk, the Tribunal must further be satisfied about the supplementary tests, namely the reasonable person test, which is an objective test, and the public interest test, which requires the Tribunal, before making an order enabling the applicant to work with children, to find that it is in the public interest to make such an order.
The respondent further submits that, while GCP accepts that he engaged in certain conduct, he continues to deny the other allegations. These are the serious allegations made by his daughter which are consistent with the conduct in respect of which GCP has made admissions. The Tribunal should not discount the possibility that the allegations may be true in making its assessment of risk. The psychologist report focuses on the risk of reoffending at a criminal level rather than focusing on risk per se. The report is also based on the self-reported information provided by the applicant and takes into account the applicant’s denials about the more serious offending. This reduces the weight of the report and the risk assessment. The evidence of GCP is that after the offending, he focused on privacy and boundary setting with his daughter but there is no evidence of the steps he took to address the more serious allegations. The respondent’s submissions in relation to each of the mandatory considerations set out in s 30(1) of the WWC Act are set out below.
In summary, it is submitted that the Tribunal cannot be satisfied on the evidence that GCP does not pose a risk to the safety of children. If the presumption that GCP poses a risk has not been rebutted, there is no need to consider the supplementary tests.

Is the Tribunal satisfied that GCP does not pose a risk?

In BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523, Beech- Jones J observed that s 28 confers two relevant powers on the Tribunal, namely a power to make an enabling order in respect of a disqualified person and a power to order the respondent to grant a person clearance under s 28(6). His Honour states that the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children.
In making the assessment of risk, Beech-Jones J discusses the risks identified in s 5B as being “real and appreciable risks” and refers to the High Court decision in M v M [1988] HCA 68; (1988) 166 CLR 69, where issues of risk in relation to custody disputes for children was being considered. In that case, the High Court was considering the onus of proof where allegation of sexual abuse had been made and discussed the standard of proof in relation to these allegations referring to its earlier decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. In Briginshaw, the High Court considered the standard of proof required to establish what was, at that time, the serious allegation of adultery. The High Court rejected the notion that the criminal standard applied, although accepted that any Tribunal of fact should act “with much care and caution” before finding that a serious allegation is established. It is now well-established that when the law requires the proof of a serious allegation which has significant consequences, such as an allegation of sexual abuse, the Tribunal must feel an actual persuasion of its occurrence or existence before making such a finding, namely there should be “reasonable satisfaction” about the finding of fact. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
In BKE, Beech-Jones J observed that the principles in Briginshaw were “enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence” but nonetheless concludes that the Tribunal would be “well advised to have regard to the these principles if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so” (at 29). His Honour states at [33] as follows:

…..the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

In CXZ v Children’s Guardian [2020] NSWCA 338, the Court of Appeal (per Simpson AJA and McCallum JA) also agreed with the approach of Beech-Jones J in BKE, stating at [57] and [58]:

57. ……The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.
58. It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

Having regard to these authorities, we have assessed the evidence before us at the time of the decision to form a view about whether GCP poses a real and appreciable risk to the safety of children and whether the presumption of risk has been rebutted.
In determining this issue, the Tribunal must have regard to the factors in s 30(1). We set out our consideration of those matters below.

Seriousness of the offences with respect to which the person is a disqualified person (s 30(1)(a))

Section 30(1)(a) provides that the Tribunal should have regard to the seriousness of the offences with respect to which the person is disqualified or any among other matters that caused refusal of a clearance or imposition of an interim bar. In this case, GCP has not been refused on the basis of the other allegations made but solely on the basis that he is a disqualified person. Section 30(1)(a) appears to contemplate the focus on the offences for which the person was disqualified. We therefore address this consideration by reference to the offence in respect of which GCP is assessed as a disqualified person, which is the offence under s 61E(2) of an act of indecency.
The offence for which GCP was convicted is objectively serious, particularly in circumstances where it involved a child, and the child was his daughter. GCP was not given a non-custodial sentence and without any further detail or sentencing remarks of the matters considered by the court, it is difficult for the Tribunal to understand the reasoning of the court and why it was adjudged as being an offence that did not warrant a custodial sentence. Despite this, we accept that this is a serious offence as it involves an offence against a child of a sexual nature, and this is particularly relevant in the context of the question of whether there is a real an appreciable risk to the safety of children. There is already a presumption of risk but in circumstances where the subject matter of the offence goes to the heart of the question about the safety of children, this is a factor which would tend to go against the rebuttal of the presumption.

Period of time since those offences occurred and the conduct of the person since they occurred (s 30(1)(b))

GCP submits, and we accept, that these offences were over 35 years ago, and he has not been convicted of any other criminal conduct since this time.
The respondents accepts that some comfort that can be drawn from this, although it is submitted this alone is not sufficient, particularly in light of the presumption of risk. The fact that the risk has not materialised in a known event does not mean nothing has happened over the past 35 years and the Tribunal should have regard to the serious nature of the conduct.
While we accept there is no evidence of any criminal conduct or similar offending by the applicant since 1988, there is force in the respondent’s submission that the fact no further allegations have been made or notified to authorities does not, of itself, establish the absence of breach or misconduct. GCP denies any other misconduct of sexual abuse and Dr Wiener opines that GCP is a low risk of re-offending. However, child sexual abuse may go undetected and, while there is evidence that GCP has been in contact with children over the years and no allegations have been made, we cannot discount this. Accordingly, this consideration goes towards rebutting the presumption but not strongly so in the absence of corroborating evidence form those close to GCP.

The age of GCP at the time the offences occurred and his age now (ss 30(1)(c) & (g))

GCP was about 44 years old at the time the disqualifying offences occurred. He is now 80 years old. This is not a case where GCP was young at the time of the commission of the offences and his age and apparent maturity at the time compound the seriousness of the offending. The fact that he is now 80 years old does not tend to lessen the risk to the safety of children because he is very active and there is no suggestion he is infirm or incapable of posing a risk to the safety of children.

The age, age difference and any evidence about the vulnerability of the victim (ss 30(1)(d)-(f))

The victim was GCP’s daughter. There was a substantial gap in their age and, most relevantly, the victim was vulnerable because she was young. There is no question that GCP knew his daughter was a child and that there was a special vulnerability in the relationship. There was, or would have been, a special relationship of trust between the victim and her father. These are significant considerations that tend to heighten concerns about risk.

The seriousness of GCP's criminal history and the conduct since the matters occurred (s 30(1)(h))

We have considered this in the context of ss 30(1)(a) and (b). As noted, there is no evidence that GCP has offended against children or that there have been any complaints in this regard. Despite this, we accept the submission of the respondent that offending against children may not always be detected and reported. On balance, these are matters in favour of a finding that the presumption of risk has been rebutted, but, for the reasons already outlined, not strongly so.

Likelihood of repetition and impact on children of such repetition (s 30(1)(i))

The Tribunal has been provided with a report from Dr Wiener to the effect that he considered it unlikely the GCP would reoffend against minors in the future. Against this, we accept the submission of the respondent that this opinion was based on Dr Wiener’s apparent acceptance of GCP's denial about the more serious conduct alleged. In our view, the opinion of Dr Wiener was measured and objective. We accept his opinion about the risk but also note his opinion was qualified in his oral evidence that there was always the possibility of reoffending. On balance, this is a matter that goes towards rebutting the presumption about risk. Against this, the seriousness of the offending, together with the further albeit untested allegations which are very concerning and go well beyond the disqualifying offence, are of such a nature that this factor weighs against rebutting the presumption. It is self-evident that conduct of this nature would have a serious and detrimental impact on children.
We also accept the respondent’s submission that, despite GCP’s denial about the more serious conduct and the fact it was not pursued by police in 1988 because of concerns about proof, we cannot discount the possibility that the conduct occurred and therefore there is the potential for risk (refer BKH and CXZ).

Any order that is enforce in relation to GCP (s 30(1)(i1))

There is no current order in place and, as such, this is a neutral factor in assessing risk.

Any information given by GCP in relation to the application (s 30(1)(j))

GCP provided evidence in support of his application, which we have carefully considered. Generally, we have found GCP to be a credible witness who was prepared to make concessions where appropriate and he was not unduly defensive when questioned about his past conduct. The fact that he denies the more serious conduct alleged does not, of itself, undermine his credibility and denials because this matter has not been tested in a contested trial environment. GCP denied the allegations and he has been consistent in this. The respondent submits that the allegations are consistent with the conduct that GCP has admitted. The conduct is consistent in the sense it is conduct of a sexual nature against his daughter, but it was a one-off event and at the lower level of culpability. In contrast, the other allegations are not only repeated but very intrusive sexual conduct. As such, there are important differences but we accept the general proposition that the conduct admitted by GCP was of a sexual nature.
Notably GCP has not provided evidence about his children’s knowledge of or views in relation to this application. This is particularly relevant in relation to his daughter. Furthermore, it was not entirely clear whether his son knew about the nature and extent of the previous offending, or his attitude given GCP’s evidence that he regularly takes his grandchildren to sporting activities. While it is understandable that parties may not wish to revisit trauma, there is little information about this, apart from GCP’s evidence and self-reports about these matters and what he says is a good relationship with regular contact with both children and grandchildren. These were not issues that Dr Wiener appears to have examined in detail and, as such, we cannot form a view about these matters. However, these matters are relevant to risk, and whether the presumption has been rebutted, because they go to question of whether the claim made by GCP that the original offending was an aberration in what is, otherwise, an unblemished record, can be substantiated. In short, the absence of this evidence raises concerns about the reliability of GCP’s claim that we can be satisfied he does not pose a risk to the safety of children. While we have found GCP generally to be credible, much turns on the veracity and reliability of his claims.

Information obtained in relation to s 36A (s 30(1)(j1))

There is no evidence of information obtained by the respondent pursuant to the information sharing provisions of the WWC Act.

Any other matters the respondent considers necessary (s 30(1)(k))

This is a general catch all consideration, which is already been encompassed by the evidence provided by the respondent which are contended to be relevant to a number of the other considerations.

Conclusion

The issue for determination is it that before the Tribunal can make an enabling order, we must be satisfied that GCP does not pose a risk to the safety of children. The risk must be real and appreciable and not remote or speculative. The determination of this matter is a question of fact, and the assessment must be made at the time of our decision. Evidence of the conduct of the applicant in the past may be relevant to the question of whether an applicant does or does not pose a real and appreciable risk to the safety of children. Examining past conduct and the disqualifying offence, in the context of the mandatory considerations set out in s 30(1), provides the Tribunal with guidance in relation to its approach to fact finding on what is a predictive and forward-looking assessment. The WWC Act establishes a scheme which is protective in nature. The protection of children is a paramount consideration, and this is self-evident in the legislative regime for the granting of approval through an enabling order.
Section 28(7) provides that there is a rebuttable presumption that an applicant poses a risk to the safety of children when they are subject to a disqualifying offence. This will ordinarily require more than a denial of the seriousness of previous convictions and charges or mere assertions that the applicant does not pose a risk. The starting position is that if an applicant has been convicted of a disqualifying offence, the Tribunal must be satisfied that he or she does not pose a risk before it can consider making an enabling order. At a practical level, if the respondent provides evidence relating to the disqualifying offence and other material relevant to the mandatory considerations in s 30(1) and that material does not rebut the presumption, it falls to the applicant to answer those matters and to provide an “adequate response” as a basis for “rejecting the affirmative conclusion” (Tilley v Children’s Guardian [2017] NSWCA 174 at [31]).
In the present case, GCP committed serious offences against a vulnerable child, his daughter, over 35 years ago. There is no evidence he has committed further offences, and he has reportedly lived a life where he has cared for his sick wife for many years and has contributed to the community through voluntary work, in the absence of evidence of wrongdoing, despite a minor firearms issue, for most of his life. The evidence about this is principally based on GCP’s own evidence and submissions about the absence of any evidence of other criminal complaints, charges, or convictions. However, we note that there is no corroborative evidence from those close to GCP or from GCP’s expert about those matters. Nor is there evidence about whether his children know about this application and whether they are supportive.

The question is whether we are satisfied that the presumption of risk has been displaced, namely are we positively satisfied GCP does not pose a real and appreciable risk to the safety of children.
Having regard to the material before the Tribunal considered in its totality, we are of the view that the matter is finely balanced. We must reach an affirmative conclusion about risk in GCP’s favour.
On balance, we are not satisfied that the presumption of risk has been displaced. We are therefore not satisfied that GCP does not pose a risk to the safety of children.
Because we are not satisfied about this, it is unnecessary to consider the supplementary tests. However, we note that one of the reasons GCP applied for an enabling order was because he understood he needed a clearance to continue undertaking his various roles with the X Club. While much depends on the nature of the roles to be undertaken, overseeing certain functions and events as described by GCP, including running the local barbecue in a public place, does not appear to fall within the definition of “child-related work” and, as such, it is possible that this may not impact GCP’s continued role with the X Club in the future.

Orders

The application for an enabling order is dismissed.

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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: 09 January 2025

Medium Neutral Citation:	GCP v Children’s Guardian [2025] NSWCATAD 9
Hearing dates:	23 October 2024
Date of orders:	09 January 2025
Decision date:	09 January 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Redfern PSM, Senior Member E Hayes, General Member
Decision:	The application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – working with children check clearances – refusal on the grounds that the applicant had been convicted of a disqualifying offence – enabling order sought – criminal offence since repealed and replaced by new provisions – whether conduct ceased to be an offence – whether applicant is a disqualified person – whether Tribunal satisfied that applicant does not pose a risk
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Amendment) Act 1989 (NSW) Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 CXZ v Children’s Guardian [2020] NSWCA 338 Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241 M v M [1988] HCA 68; (1988) 166 CLR 69 Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited:	Explanatory Note, Crimes (Amendment) Bill 1989 Second reading speech of the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, Attorney General, 6 June 2018, Hansard Explanatory Note to the Crimes (Amendment) Bill 1989
Category:	Principal judgment
Parties:	GCP (Applicant) Children’s Guardian (Respondent)
Representation:	Applicant (self-represented) Solicitors: Crown Solicitor (Respondent)
File Number(s):	2023/00442192
Publication restriction:	Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victim or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.