GDB v Secretary, Department of Education

[2025] NSWCATAD 96

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GDB v Secretary, Department of Education [2025] NSWCATAD 96

Hearing dates:

18 and 19 December 2024

Date of orders:

05 May 2025

Decision date:

05 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
R Royer, General Member

Decision:

Prohibition Notice issued on 7 December 2023 is cancelled.

Catchwords:

ADMINISTRATIVE LAW – Education and Care Services National Law – review of decision to cancel a prohibition notice - assessment of risk – unreasonable risk– protective jurisdiction - correct and preferable decision

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Child Protection (Working with Children) Act 2012 (NSW)
Children (Education and Care Services) National Law (NSW)

Children (Education and Care Services) National Law Application Act 2010

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

CXZ v Children’s Guardian [2020] NSWCA 338

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Commonwealth v Baume [1905] HCA 11; 2 CLR 405

Beckwith v R [1976] HCA 55; 135 CLR 569

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

GFQ v Secretary, Department of Education [2024] NSWCATAD 237

Jones v Dunkel (1958-59) 101 CLR 298

Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45

Kumar v Secretary Department of Education [2021] NSWCATAP 411

M v M (1988) 166 CLR 69; [1988] HCA 68

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Tilley v Children’s Guardian [2017] NSWCA 174

Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; 259 CLR 106

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GDB
Secretary, Department of Education

Representation:

Counsel:
H Atkin (Respondent)

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00465121

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the applicant’s name, including any further identifying information as provided in connection with these proceeding is prohibited.

REASONS FOR DECISION

1. On 7 December 2023, the applicant was issued with a prohibition notice (“the Decision”) by a delegate of the Secretary of the Department of Education, New South Wales, under section 182 of the Children (Education and Care Services) National Law (“National Law”). Pursuant to s 193(1) of the National Law, the applicant seeks an administrative review of the Decision. The basis for the Decision was that there may be an unacceptable risk of harm posed by the applicant to children.

2. On 4 September 2023, the applicant performed three hours of a student placement course at an early childhood education centre. The applicant has a working with children clearance.

3. One of the parents of a child receiving education at the early childhood education centre was a principal at a school. This parent, as a consequence of her position had access to confidential information as to persons listed on a “Not To Be Employed List” (“NTBE List”) made by the NSW Department of Education. This parent recognised GDB as a person listed on the “Not To Be Employed List” and notified the early childhood education centre, who contacted the respondent. The parent also stated in the communication to the early childhood education centre that the applicant had been “raided for child pornography”.

4. In April 2013, the applicant was charged with four counts of possession of child abuse material. The charges came about as a result of a disclosure made by the applicant that he was sent the child abuse material in 2004 when he was eighteen years old when he joined an online chat group for homosexual men. Before the Tribunal there was extensive material about the charges, the criminal proceeding, the disclosure, applicant’s health records, medical reports, employment records and numerous related legal claims.

5. The applicant was placed on the NTBE List in 2020 for reasons unrelated to the possession of child abuse material. The reason for the applicant being placed on the NTBE List, given in the Decision was “following performance concerns and associated complaints that were subject to determinations by external review bodies.” What exactly this means is explained further in the decision.

The Law

6. The objectives and guiding principles of the National Law are contained in s 3:

(2) The objectives of the national education and care services quality framework are—

(a) to ensure the safety, health and wellbeing of children attending education and care services;

(3)The guiding principles of the national education and care services quality framework are as follows—

(a) that the rights and best interests of the child are paramount;…

7. An entity with functions under the National Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services framework (s 4). The respondent has been declared to be the Regulatory Authority for NSW for the purpose of the National Law; s 9 Children (Education and Care Services) National Law Application Act 2010 (NSW). Section 9 of the National Law Application Act recognised this Tribunal to be the relevant tribunal or court for the purposes of Part 8 of the National Law.

8. Division 3 of the National Law sets out prohibition notices. Section 182 sets out the grounds for giving a prohibition notice:

The Regulatory Authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed—

(a) to remain on the education and care service premises; or

(b) to provide education and care to children.

9. Section 63 of the Administrative Decisions Review Act 1997 provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.

The evidence

10. There was voluminous amount of evidence before the Tribunal. As the applicant stated in his oral opening submission, the matters this application raised were complicated and had a long history. Much of the evidence was not in contest. We provide the following narrative based on the materials before the Tribunal.

11. The applicant grew up in regional Australia. He attended a religious school. The applicant had delayed development. The applicant was bullied at school and this impacted on his mental health. He began to question his sexuality during his years in high school.

12. In 2004 when the applicant was 18 years old he joined Yahoo chat groups because he was attracted to men and this gave him an avenue to communicate with others about his sexual identity. He was sent child abuse material which included about 30 still images and a video. He was also sent photographs of children in underwear and swimwear that can be described as highly inappropriate material. The child abuse material, the highly inappropriate material and adult pornographic material were downloaded in a folder on the applicant’s hard drive.

13. In 2004, the applicant copied the material to CDs in the process of copying his whole hard drive to create a backup. In 2006 the applicant purchased a new computer and copied his existing hard drive. This process was repeated in 2010. The material located on the applicant’s laptop was exactly the same as the material on the CDs.

14. The applicant’s evidence was that he did not view the child abuse material or the highly inappropriate material after the initial viewing when they were sent to him in 2004. The applicant stated that he downloaded the material, which was not solicited, because he was naïve and was coming to terms with being sexually abused by his grandfather when he was six. He denied that he downloaded the child abuse material or the highly inappropriate material for sexual gratification. This was one of the issues in dispute between the parties.

15. In November 2010 the applicant completed his training as a teacher and in February 2011, he commenced his first job as a mathematics teacher in a high school. In 2012 he worked in another high school as a mathematics teacher and as a teacher for gifted and talented students.

16. In 2012, he began working in a religious school as a wellbeing and behaviour support teacher. The school educated students from kindergarten to year 2. This school was in an isolated and challenging environment. As part of his work, the applicant became aware that some of the students had been sexually or physically abused by family members or other members of the community. The applicant considered that these students were carrying trauma and were distrustful of adults as a result of the abuse.

17. Due to the confluence of numerous factors, including child welfare issues of the students, work load, post graduate study, tight timeframe for accreditation of professional competence and absence of mental health services in the community, the applicant experienced high levels of mental illness and was on the “verge of a mental health crisis”.

18. The applicant was not sleeping for days, thought he was being watched at school and monitored by the authorities. The applicant attempted to delete the child abuse material.

19. The applicant disclosed to the principal of the school that he had child abuse material on his personal computer. The applicant, during cross examination gave different accounts as to the chronology of events that led him to disclose to the principal of the school that he had downloaded the child abuse material.

20. The disclosure led to the termination of the applicant’s employment with the school. The police became involved and in April 2013 the applicant was charged with four counts of possession of child abuse material contrary to s 91H of the Crimes Act 1900 (NSW). The child abuse material included two CD discs and a hard drive containing the child abuse material.

21. The Fact Sheet before the court inter alia stated that the laptop seized from the applicant was forensically examined and that: “There was no evidence to suggest that the images on the laptop of the WD Hard Drive had been recently accessed…”

22. The Fact Sheet referred to a document as CETS Scale. The document is authored by the Australian Federal Police. It categorises child exploitation material and is dated 18 April 2017. The Fact Sheet stated that a number of the images of the children appeared to be under the age of 14 and some under 10 years of age. One image depicted a boy performing fellatio on another boy which was classified as Category 1 on the CETS Scale which is sexual activity and the remaining images were classified as Category 4 on the CETS Scale which was no sexual activity. The video was classified as Category 2 on the CETS Scale, it depicted two pubescent boys masturbating each other.

23. The charges against the applicant were dismissed under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The prosecutor at the hearing did not oppose dismissal pursuant to s 32 on the basis of; the applicant’s full disclosure; timeframe for when the material was accessed and then left alone; no re-offending and conduct of his grandfather. The magistrate accepted that the applicant had an anxiety disorder that impacted on his conduct.

24. At the hearing, the applicant relied on reports from his treating psychologist Peter Chown. During his treatment with Mr Chown, the applicant disclosed for the first time that he had been sexually assaulted by his grandfather as a child. We return to Mr Chown’s evidence below.

25. On 8 November 2013, following the dismissal of the charges, the NSW Department of Education advised the applicant that they were considering placing him on a NTBE list and revoking his teacher approval. Following submissions by the applicant, the respondent determined to not place the applicant on the NTBE list and to withdraw his casual approval to teach with the Department, on the agreement that following 12 months, the applicant could, with the provision of medical evidence apply for consideration of conditional approval to teach.

26. Between 2013 to 2016 the applicant completed a Bachelor of Laws. He made a disclosure of the 2013 charges (possession of child abuse material). Following a meeting of the Disclosure Committee he was admitted as a lawyer by the NSW Legal Professional Admission Board on 17 May 2017. The applicant worked as a solicitor for about two years.

27. On 7 September 2015, the respondent was satisfied that the applicant’s mental health was sufficiently stable to allow him to teach casually.

28. On 19 October 2016, the applicant was granted a working with children clearance (“WWC”) pursuant to the Child Protection (Working with Children) Act 2012 (NSW). For the purpose of the application, the applicant obtained a report from Dr Olav Nielssen dated 18 June 2015, a psychiatrist and a report from Dr Andrew Ellis, a forensic psychiatrist dated 30 May 2016.

29. On 16 May 2018, the applicant joined Australian Air Force Cadets (AAFC) as a civilian instructor. He was promoted to pilot officer on 26 November 2018. He has also been the Squadron (Unit) Duke of Edinburgh International Award coordinator, second in charge of the Unit and trained in supervising rifle shooting activities. The applicant continues his involvement with AAFC. All of these roles require the applicant to be involved with children.

30. In August 2019, the applicant began working as a teacher in a primary school on a casual employment contract. He applied to work in a different school and commenced at the start of 2020.

31. In March 2020, the applicant was employed as a casual teacher in a primary public school. He resigned in June 2020. At around this time the school principal raised concerns about the applicant’s performance as to lesson planning, content delivery, not using classroom discussion efficiently and failure to provide consistency throughout lesson delivery.

32. The applicant made a complaint of discrimination on the ground of homosexuality on 17 June 2020 and made a workers compensation claim at about this time.

33. In August 2020, the applicant approached the Australian newspaper about his discrimination complaint. Days before the story was to be published he withdrew his consent, but the article was published, nevertheless. Two articles were subsequently removed after the applicant made a complaint to the Australian Press Council.

34. On 13 August 2020, the applicant was provided with notice that the respondent was considering placing him on the NTBE List because of the issues raised by the school principal on 21 June 2020 and because he “made public his feelings and beliefs” about the improvement process.

35. On 21 August 2020, the applicant was notified that he had been placed on the NTBE List for a period of two years. As a result of being placed on the NTBE list in August 2020 the applicant has been unable to work as a teacher in the public school system. On 3 August 2021, the applicant was cleared to work with children in both volunteer and paid roles in NSW and he continues to hold a WWC.

36. NSW Education Standards Authority (“NESA”) suspended the applicant’s teacher accreditation. The applicant made an application for review to this Tribunal and his teacher accreditation was reinstated. NESA appealed the decision. Following a further hearing on 20 February 2023, this Tribunal made the following order:

The decision of NESA made on 24 February 2021 is varied by removing the requirement that the applicant’s accreditation is suspended until his name is removed from the Department's Not To Be Published List to a decision that his accreditation is suspended until the date of the publication of this decision

37. The applicant lodged a workers compensation claim against the respondent in regard to an injury sustained at work arising from the alleged homosexual discrimination. The applicant began seeing Dr Wei Wang, a psychologist. He prepared a report dated 26 July 2020 and Dr Clayton Smith, consultant psychiatrist who prepared a report dated 30 April 2020. The applicant was also seen by Dr Ash Takyar, consultant psychiatrist.

38. In January 2020, the applicant applied for a Queensland “Blue Card” which is similar to a working with children clearance in New South Wales. The applicant’s application was refused. The Queensland Civil and Administrative Tribunal upheld the refusal of the application. We do not refer to the citation of this decision or the other decisions by this Tribunal as this would disclose the applicant’s identity. As part of that application, the applicant obtained a report from Mr Peter Chown, psychologist dated 16 November 2021 and a report from Dr Wei Wang, psychologist dated 7 October 2021.

39. Before dawn on a Sunday in early May 2023, the applicant was involved in a road accident. He was hit by a truck as he stepped out on the road. He remained in hospital for three weeks due to break to his left leg and left wrist. Due to the nature of the physical injuries, he required extensive rehabilitation.

40. During the last week at the hospital, he started to experience nightmares and flashbacks associated with trucks and horns. The applicant was then admitted to a psychiatric unit at a private hospital to begin to deal with trauma associated around the car accident. The applicant was discharged after two weeks.

41. During the placement at the private hospital, there was concern that the applicant had a brain injury and he was asked a memory test for three consecutive days. He returned a high post traumatic amnesia score.

42. The applicant stated that on 15 June 2023 he undertook an MRI scan of his brain and there was no physical evidence of injury.

43. The applicant returned to work in September 2023 but continued to experience brain fog, issues with irritability, difficulty remembering things, sensitivity to noise and sound. As a result he was referred to a neuropsychologist, Dr Lynne Ridgeway, who provided a report on 9 December 2023.

44. The applicant had no recollection of events leading up to the road accident. He could not recall why he was out at that time of the day. The applicant stated that he “had no recollection of the accident, how it came about, why I was on the road or any other associated information.” The truck driver who struck the applicant, stated that he walked out on to the road and he believed it was a suicide attempt. The applicant did not recall if it was a suicide attempt.

45. Dr Goldstein, consultant psychiatrist in his report dated 14 November 2024 recounted that when the applicant arrived at the hospital, the incident was “formulated” as a first suicide attempt and that the applicant recounted that his mental health was relatively good prior to the incident.

46. Due to ongoing nightmares, flashbacks and difficulty sleeping, he was referred to a psychologist. The sessions were dealing with post-traumatic stress disorder following the accident. That referral ended in November 2024.

47. When the applicant returned home from the hospital in June 2023 he saw that there were free TAFE NSW courses. He decided to enrol in a Certificate III in Early Education and Care. As part of the course, the applicant was placed at an early childhood educational centre in September 2023. On the first day of the placement he was asked to leave.

48. The applicant subsequently learned that he was asked to leave the early childhood educational centre because of an email sent that morning to the centre from a parent who was a principal at a school that stated that the applicant was “previously raided for child pornography and was dismissed… he was on the do not employ list with the department of education… I wouldn’t leave him alone with any of the kids and watch him carefully.”

Cross examination of the applicant

49. The applicant was cross examined about numerous topics, including his time working as a teacher in 2012, the circumstances surrounding his disclosure to the principal and subsequent disclosure to doctors and to the Legal Practitioners Admission Board.

50. The applicant gave evidence that in 2012 he was working with students, some as young as 10 years old who had been sexually abused, neglected, sniffing petrol and engaging in crime and anti-social conduct. He had no psychological supports, he was working seven days a week. He had a breakdown and had paranoid delusions.

51. He stated that at this time there was a boy in year 2 who was showing his buttocks. He considered this behaviour inappropriate. At about this time he went to the home of the principal for a meal and his two year old daughter walked out naked. He said that he raised the inappropriateness of this conduct with the principal, but these issues of child protection were ignored.

52. The applicant also referred to an incident in 2011 when a 14 year old student solicited him for sex when he initiated a discussion about the gay marriage plebiscite during class. The applicant reported this conduct to the school.

53. He stated that the reason he downloaded the child abuse material in 2004 was because he was coming to terms with being sexually abused by his grandfather when he was six.

54. It was put to him that he failed to disclose the fact that he downloaded 800 images of children in swimmers to the Legal Practitioners Admission Board. The applicant stated that he did not consider it relevant as it was not considered during the court proceedings because it was not child abuse material, it was not criminal conduct. He also stated that he was not sexually attracted to children.

55. The applicant stated that he had worked with children for a considerable time as a teacher, as a volunteer in Australian Air Force Cadets with cadets, Duke of Edinburgh with students and in Legal Aid and Aboriginal Services with clients who were children and there were never any issues raised about his conduct.

56. The applicant stated that the Yahoo chat group became active again in 2012. He contacted the group and stated that the contact in 2004 was inappropriate and he closed down the membership. This contact made him remember the child abuse material he had stored on his hard drive. There was also some issue with his firewall. He tried to delete the child abuse material.

57. It was put to the applicant that because he did not disclose an explanation as to how he came to download the highly inappropriate images (800 images of boys in swimwear etc), there is a suggestion that the likelihood was that the images were downloaded for sexual gratification. The applicant did not agree with this proposition.

58. It was put to the applicant that in numerous letters he drafted he did not specifically refer to a video which was part of the child abuse material. It was also put to him that his statutory declaration to the Children’s Guardian did not refer to the video and that he referred to the children in the child abuse material as “my peers as opposed to children significantly younger than himself.”

59. During re-examination the applicant gave evidence that from 2012 he was continuing to come to terms with childhood sexual abuse, confusion about his own sexuality and a violation of his human rights of being circumcised as a child.

60. The applicant stated that he did not have the insight in 2004 to understand that the 800 images of boys in swimwear went below the line. He did in 2012 when he sent an email to the moderators of the Yahoo chat group.

61. The applicant stated that he was interested in early childhood education because he had to attend early intervention because he had delayed learning and had a lot of difficulties. He could use this experience and skills to help children avoid or minimise the problems he experienced.

62. The applicant stated that he had long term intimate partners over the last ten to twelve years. He stated that he had many more friends than before, he was living with a family member, had a supportive family and had permanent employment.

63. The applicant stated that he was not under any risk of suicide, that he was not having a mental crisis or was in any way mentally unstable.

Medical Evidence

64. There was substantial medical evidence before the Tribunal.

Mr Chown

65. There are two reports from Mr Chown. The first report is dated September 2013 and the second report is dated 16 November 2021. Mr Chown was cross examined.

66. Mr Chown recorded in the first report that the applicant had serious learning and developmental difficulties in childhood and adolescence, long history of anxiety and depression and significant confusion around sexual identity and sexual orientation, particularly during his late adolescence when the offending occurred.

67. Mr Chown’s opinion was that the applicant at the time of downloading the material and when he disclosed the offence in October 2012 was suffering from a recurrent Anxiety Disorder, leading to periods of depressed mood.

68. Mr Chown’s opinion was that the applicant developed Anxiety Disorder in “adolescence stemming from the developmental, learning, social and identity issues, as well as traumatic experiences”.

69. Mr Chown stated that the applicant had shown a great deal of insight into his behaviour and the difficulties he has experienced in coming to terms with his sexual identity and the sexual abuse by his paternal grandfather on two occasions at the age of six.

70. Mr Chown noted the relationship between the confusion caused by the sexual abuse, the applicant’s sexuality and participation in the chat room where the file sharing took place.

71. Mr Chown was of the opinion that the applicant was not sexually attracted to children, that he had a low risk of re-offending and had good insight of the damaging effects of such offending.

72. Mr Chown stated:

I have concluded that as a result of these adverse experiences, coupled with his history of developmental, learning, emotional and interpersonal difficulties, … (the applicant) was a socially and psychologically immature and naive 18 year old. I believe that the offending images were not downloaded by … (the applicant) as a source of sexual gratification. Rather I believe that it was indicative of his naivety and confusion about his sexual identity, and was part of a process of … (the applicant) coming to terms with his experience of sexual abuse and how this experience contributed to his confusion about his sexual orientation.

73. In the second report it was noted that the applicant participated in psychological treatment and had made “excellent progress” and had “little or no risk of reoffending.” Mr Chown found that the applicant would not pose a risk to children.

74. During cross examination, Mr Chown gave evidence that he has been a psychologist for about 40 years and in the first 25 years of his practice he specialised in adolescent health. His evidence was that he was experienced working with clients who have been involved in sexual offending. He is a specialist sex educator and he has written books about sexual health.

75. Mr Chown commenced to treat the applicant in 2013 when he was in his mid-twenties and found him to have the maturity of an adolescent, which was consistent with his history of abuse and trauma.

76. Mr Chown stated that he did not view the child abuse material and was not aware that there were some other 800 images of children that was not child abuse material. Mr Chown agreed that in assessing paedophilia, the volume of material depicting children was relevant. Mr Chown also agreed that context had to be taken into account and did not consider that that the applicant had taken liberties with the objective reality by telling him that the purpose of downloading the images was not for sexual gratification.

77. During his treatment of the applicant, he had numerous discussions with his General Practitioner and provided treatment over a long period of time. Mr Chown confirmed that he considered the applicant to pose a low to very low risk to the safety of children. Mr Chown did not consider that the applicant’s history of mental health issues would trigger him to engage in any future offending.

78. Mr Chown confirmed that he read Dr Goldstein’s report about the road accident in 2023 but that this did not change his opinions expressed in his reports.

Dr Wang

79. There were two reports from Dr Wei Wang, a psychologist, dated 26 July 2020 and October 2021.

80. Dr Wang recorded that in early March 2020, the applicant had a mental breakdown and was admitted to a mental health unit over the weekend. The applicant experienced a mental breakdown as a result of what he experienced at work. The applicant reported having a breakdown in 2010 while he was teaching a class of children with learning difficulties as a trainee teacher due to feeling overwhelmed and the lack of support.

81. Dr Wang stated that the applicant had a long history of mental issues with “identifiable distressing sources” and “had always taken initiatives to seek help when he felt difficult to cope”.

82. Dr Wang diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood as a result of what the applicant experienced at work with the school leadership.

83. Dr Wang’s second report was based on access to materials, observations and the following assessments; Depression Anxiety Stress Scales and Milton Clinical Multiaxial Inventory. Dr Wang concluded that there was no evidence to suggest that the applicant was vulnerable or had a risk of repeating what he did when he was eighteen and stated that the risk of future offending was “unlikely”.

Dr Nielssen

84. Dr Olav Nielssen, a psychiatrist, prepared a report dated, 18 June 2015. Dr Nielssen noted the applicant’s instructions that he was in a Yahoo chat group called “twinks”. Twinks is a reference to young looking adult men. The child abuse material was sent to him as part of a mailing list in 2004 when he was eighteen. At this time he had not accepted he was homosexual in sexual orientation. He described the material as 30 images that were considered low level and one video of children involved in sexual activity. The applicant looked at this material. The applicant stated that he did not ask for the material and did not pass on the material to another person. He stated that forensic analysis showed that the images were downloaded in 2004 and that the files had not been opened since they were downloaded. He stated that the images were carried over every time he updated his computer.

85. The applicant told Dr Nielssen that he disclosed that he possessed child abuse material to his employer after Yahoo reactivated his account membership and sent him emails. He considered that that the authorities had remotely examined his computer and that “I would have to come forward and explain what happened.” He referred to his USB sticks being moved at work.

86. The applicant stated that in 2012 he was having an emotional breakdown and continuing to question his own sexuality. He commenced to see Mr Chown to explore the issue of a potential sexual interest in children. The applicant indicated to Dr Nielssen that he had no sexual interest in children, but he was anxious about his sexuality, having been the victim of sexual abuse as a child. The applicant described the sexual conduct by his grandfather as fondling after he went to bed on two occasions.

87. Dr Nielssen recorded that the applicant’s psychiatric history included periods of anxiety, panic attacks and depression in 2004, 2005, 2008 and 2010 associated with adapting to change and stress of university life. The applicant was treated with high doses of medication and behavioural therapy from 2004 and a further period of counselling in 2009 and 2010 when he commenced as a trainee teacher.

88. The applicant was admitted to a psychiatric ward during a crisis following the disclosure in 2012, during which he seriously contemplated suicide. It was an overnight admission as an involuntary patient. He was described as having a situational crisis and there was no evidence of psychosis. He was diagnosed with depression and was under the care of Mr Chown. In June 2015 the applicant had a psychiatric diagnosis of depression which was in remission and anxiety disorder which was in remission.

89. Dr Nielssen considered whether to give a diagnosis of psychotic illness and disorder of abnormal interest but decided against it. The disorder of abnormal sexual interest, the attraction to prepubescent boys was also considered on the basis of the applicant having the child abuse material in his possession. The disorder was not found because of; how the material came to be in the applicant’s possession; the length of time since that event and no other conduct since he was eighteen; the fact that the applicant had sexual relations with people his own age; the fact that the images were not viewed and his account of not being attracted to children.

90. Dr Nielssen concluded that the applicant “carries a very low risk of further offences of a similar nature” to the offence of possessing child abuse material.

91. Dr Nielssen also noted that:

“The rate of recidivism for sexual offences in general and those charged with possession of child abuse material in particular is low. Moreover (… the applicant) does not have any other risk factors that might increase the probability of further offences of any kind, including a pattern of antisocial conduct or a substance use disorder.”

Dr Ellis

92. Dr Andrew Ellis, a forensic psychiatrist, prepared a report dated 30 May 2016. Dr Ellis conducted a psychiatric assessment for the purpose of the working with children assessment.

93. The applicant disclosed to Dr Ellis that when he looked at the child abuse material including the video, he did not masturbate to the images or look at them again. He reported feeling confused about his sexual orientation and was suffering from depressive and anxious symptoms.

94. The applicant informed Dr Ellis that in 2012 the connection with the chat group resurfaced and hard core pornography was being shared. He said that one day he found a USB at his home. He considered that he was being monitored and people knew about the child abuse material.

95. Dr Ellis went on to say:

In general first time offenders who do not show evidence of paraphilia (deviant sexual arousal) show low rates of either future internet or other sexual offending….

The only risk factor he presents with is his history of child abuse material offending. This offending occurred over a decade ago and has not been repeated. There is no chronicity, escalation or coercion used by the applicant in the offending. Therefore its relevance in the current case is limited.

For most factors associated with future sexual offending the applicant presents a positive profile. He has stable volunteer employment, study and accommodation, support of a prosocial family and peer group and no evidence of an antisocial personality style. He has good professional supports. His prior mental disorders are now in full sustained remission. There is no additional sexual offending or other offending history. He does not present with deviant sexual arousal. He does not have a substance abuse problem. He has satisfactorily completed mental health treatment and supervision for his prior offences. He shows good current coping and organisational skills. He displays attitudes that do not support sexual offending of any kind.

In considering structured professional and clinical parameters the applicant would fall into a group of persons with a risk for repeat internet or other sexual offending that is of the lowest order of frequency. The risk is not likely to be further reduced by additional measures than currently in place. The risk is not likely to be increased by employment involving children.

96. The applicant described to Dr Ellis his understanding of the harm of child abuse material. He stated that child abuse material is disgusting. He understood that child abuse material had a drastic effect on children that robbed them of innocence. He said that at the time of the offence he was naïve and did not think about its effect. He also said that child abuse material has an effect on the community as a whole by degrading children and their families.

97. Dr Ellis considered whether the applicant had a psychiatric diagnosis of a sexual disorder, namely paedophilia. Based on the material provided, which was extensive and the self-disclosure, he found that there was no evidence of a sexual disorder and that the download of the material were more indicative of sexual experimentation and exploration of identify.

98. Dr Ellis reported that there was limited scientific literature on the risk of reoffending posed by persons with a first conviction for internet child pornography offences.

Dr Smith

99. Dr Clayton Smith, consultant psychiatrist, prepared a report dated 30 April 2020. Dr Smith recorded that in March 2020, the applicant’s mental health quickly deteriorated with the onset of suicidal ideation. Dr Smith was of the opinion that the applicant was in the early stage of remission from a diagnosis of adjustment disorder with depression and anxiety.

Dr Takyar

100. The applicant was seen by Dr Ash Takyar, consultant psychiatrist, on 6 October 2020. Dr Takyar noted that the applicant’s mental state had deteriorated since June 2020 and that he presented with aggravation of a major depressive disorder and generalised anxiety disorder.

Dr James Goldstein

101. The applicant was seen by Dr Goldstein, consultant psychiatrist, on or around 14 November 2023 following the road accident in May 2023. Dr Goldstein noted that the issue was “resolving mental health symptoms with an acute stress type reaction and adjustment to physical injury” caused by the road accident. Dr Goldstein diagnosed the applicant from suffering from an Adjustment Disorder and acute stress reaction, that were both improving and features of generalised anxiety disorder.

102. Dr Goldstein found the applicant to be “not melancholic, neurovegetative or suicidal and not psychotic.” Dr Goldstein did not consider that the applicant would benefit from any medication.

The applicant’s submissions

103. The applicant submitted that he did not pose a risk to the safety of children. He relied on the extensive expert medical evidence before the Tribunal. The applicant submitted that he never posed a risk to children in the past. He submitted that, based on the medical evidence it was clear that when in the past he had suffered from mental illness he was proactive in notifying authorities and medical practitioners and voluntarily entered into treatment. The applicant’s evidence was that he did not view the child abuse material after initially looking at it when he downloaded it in 2004. His evidence was that he did not download the child abuse material for sexual gratification and did not feel sexual gratification when he viewed the child abuse material.

104. The applicant submitted that he had been treated unfairly by the respondent and he was aggrieved about the circumstances in which this matter resurfaced when he was studying for the early education qualification. The applicant submitted that he was still paying for his wrong conduct when he was eighteen years old, some 21 years ago.

105. The applicant submitted that according to the AFP’s document on Categorising child exploitation material, 28 images were in category 1. One image involved sexual activity. The 800 images were in category 9, that is ignorable material of inappropriate images of children in swimwear and underwear.

106. The applicant referred to the medical opinion of Dr Elias and Dr Chown that there was no link between his mental health and any future re-offending, that is downloading child abuse material. He also reiterated that he took child safety concerns seriously.

The respondent’s submissions

107. The respondent submitted that despite the applicant having a working with children clearance, the issues the Tribunal must consider in s 182 of the National Law are different as there is a different test because of the word “may” and the word “unacceptable”. The respondent also pointed to the Queensland Civil and Administrative Tribunal’s decision to not issue the applicant a “blue card” which is similar to the working with children clearance in New South Wales.

108. The respondent submitted that it was critical to consider that the child abuse material with the highly inappropriate material and the adult pornography because they were in the same file. The respondent submitted that an inference should be made that the child abuse material was downloaded and viewed for sexual gratification.

109. The respondent submitted that even if the Tribunal does not find that the child abuse material was downloaded for sexual gratification and viewed once, there was a possibility that the applicant posed a risk to the safety of children because of the very special nature of the protection of very young children in child care centres.

110. The respondent pointed to Dr Wang’s report which referred to the applicant’s excitability, zealousness, hot headedness that can lead to social inappropriate conduct.

111. The respondent submitted that the applicant displayed instances of justification which reflected poorly on his credibility and that there was a real possibility that this was the product of “unconscious process of dissembling”. That is by repeating things to himself, he convinced himself of things. For example he previously said that he made an immediate disclosure to the principal where in fact it took him two weeks to make the disclosure to the principal. This is also relevant to the applicant giving evidence that a USB brought back the memory of the child abuse material, but also stating that it was the Yahoo chat group that brought back the memory.

112. The respondent also pointed to the applicant’s evidence that in 2004 he considered the children in the child abuse material were his peers but he was much older at the time that the children depicted in the child disclosure material.

113. The respondent submitted that it was improbable that the applicant could recall how the children appeared in the child abuse material in 2013 if he had only viewed the images in 2004 and the applicant’s evidence that he only looked at the images in 2004 and that he had forgotten that he had them until 2012 did not sound truthful.

114. The respondent submitted that there was a “pattern of justification” because when he disclosed and the police searched his home, he gave consent but then refused to consent and a warrant was required. The applicant candidly admitted wrong but exaggerated and failed to mention details. For example he exaggerated the issues about insurance and the “forensic” evidence finding that he did not view the material after the initial viewing.

115. The respondent submitted that the applicant was also argumentative, non-responsive, seeking to advocate his case which all goes to credibility. The respondent did not submit that the applicant was dishonest.

116. The respondent referred to Dr Ellis’ report which did not mention the highly inappropriate material but that those images should have been disclosed to him as his finding about the small number of images and the location of the images is relevant. The respondent submitted that the “obvious inference” was that the applicant downloaded the material for sexual gratification. The respondent’s broad submission was that all of the medical reports have limitations because the applicant is not a credible witness and because the doctors did not know that the child abuse material was stored together with the highly inappropriate material and with adult pornographic material and that most do not mention the video.

117. In regard to the 2023 road accident, the respondent submitted that there cannot be a positive finding that it was a suicide attempt but is relevant as Dr Chown found that the applicant had skills and abilities in 2014 to deal with stressors but there have been serious life crisis since then.

118. The respondent submitted that the Tribunal should find that the applicant poses a risk to children by balancing the probability of harm against the risk. It was submitted that while the risk is low, the harm is so serious.

119. The respondent pointed to the applicant’s mental health history and mental health problems generally as reasons why he should be excluded from working at child care centres as these workplace are highly stressful and the applicant previously acted irrationally and blamed others when the respondent refused to attend mediation as part of the discrimination claim which led to a mental health breakdown in November 2020.

120. The respondent submitted that the applicant was an unsatisfactory witness and his evidence could not be relied upon because he did not explicitly refer to the video when he referred to the child abuse material, because his evidence before the Tribunal kept changing as to the circumstances surrounding the disclosure to the principal and because he did not explicitly state in his statement to the Tribunal that he attempted to delete the child abuse material before disclosing to the principal.

Consideration

Assessment of risk

121. The consideration of whether a person may be an unacceptable risk of harm to a child or children within the meaning of s 182 of the National Law is analogous to considerations made about Working with Children Check Clearances pursuant to the Child Protection (Working with Children) Act 2012; Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 [70]; GFQ v Secretary, Department of Education [2024] NSWCATAD 237 [40]; Kumar v Secretary Department of Education [2021] NSWCATAP 411 [21].

122. The objects and purpose of the National Law are comparable to those in the Child Protection (Working with Children) Act, which is to “ensure”, s 4 and “secure” in s 3 National Law “the safety, welfare and well-being of children”.

123. Section 15 of the Child Protection (Working With Children) Act 2012 asks “whether the applicant poses a risk to the safety of children” as where s 182 of the National Law requires a consideration of whether “there may be an unacceptable risk of harm to a child or children”(by the applicant).

124. Both the Child Protection (Working With Children) Act 2012 and the National Law have as its guiding principle “that the rights and best interests of the child are paramount”.

125. As Young JA observed in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [17], all adults pose the possibility of risk to the safety of a child. The issue is assessing that risk:

Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm. The existence of that potential will require some foundation in fact.

126. His Honour at [22] and [24] supported the view expressed by Haylen J in R v Commissioner for Children and Young People [2002] NSWIR Comm 101 that the jurisdiction is protective and not punitive and that an assessment of real risk is required:

His Honour thus said that what 9(4) was focused on was “not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.

127. At [42] his Honour said that in constructing the words “pose a risk to the safety of children” should be read together:

…but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children".

128. In carrying out its fact finding function, the Tribunal should take into account the circumstances surrounding the particular incident and the course of conduct; CXZ v Children’s Guardian [2020] NSWCA 338 [57] Simpson AJA; BKE v Office of the Children’s Guardian [2015] NSWSC 523 [33] Beech-Jones J.

129. Basten JA in CXZ stated that the correct test in assessing whether a person poses a risk to the safety of children was set out by the High Court in M v M (1988) 166 CLR 69; [1988] HCA 68, applied by Beech-Jones J in BKE at [33] and followed in Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35].

130. In M v M the High Court held that access to a child by a parent will be denied if there exists an “unacceptable risk” to the child being exposed to sexual abuse. At [25], the High Court set out the difficulties in defining the concept of risk to children (footnotes excluded):

Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" "an element of risk" or "an appreciable risk", "a real possibility", a "real risk", and an "unacceptable risk. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

131. At [24], the High Court observed that a determination must be based on evidence going to risk of sexual abuse occurring “and assess the magnitude of that risk.”

132. Simson AJA in CXZ stated that:

[53] In the context of the Child Protection Act this assessment will depend upon a number of things: among them, the seriousness of the allegations, the strength of any evidentiary support for the allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant.

…

[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.

133. We consider these authorities as being apposite to considering whether there “may be an unacceptable risk of harm” to a child or children if the applicant was “allowed to remain on the education and care service premises” within the meaning of s 182 of the National Law.

134. There is no definition of the phrase “unacceptable risk of harm” in the National Law. There are numerous uses of the word “unacceptable risk to the safety, health or wellbeing of any child” and “unacceptable risk of harm” throughout the legislation. We consider that the word “harm” incorporates risk to the safety and wellbeing of any child.

135. It is not clear what the word “unacceptable” adds to describing the risk of harm. There is a presumption that words chosen by legislature should be given meaning and effect; Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414 Griffith CJ; Beckwith v R [1976] HCA 55; 135 CLR 569 at 574 Gibbs J.

136. However as stated by Kiefel and Bell JJ in Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; 259 CLR 106:

Moreover, it has been recognised more than once that Parliament is sometimes guilty of "surplusage" or even "tautology”. The possibility that Parliament may not have appreciated that the reference in s 177(2)(b) was not necessary, and was liable to confuse, is not a reason for giving it a literal interpretation (footnotes not cited).

137. As the High Court noted in M v M at [25], the attempt to describe the degree of may be an attempt “that the subject is not capable of yielding”. We consider that the meaning of the word “unacceptable” to be “not acceptable, not satisfactory or allowable”: The Australian Oxford Dictionary, Second Edition.

138. We do not need to decide whether the phrase “considers that there may be an unacceptable risk” in s182 indicates a deliberate drafting choice to adopt a lower standard of persuasion as compared to ss 31(b), 49(1)(a) and 77(a) of the National Law as the language used there is “satisfied that the … would constitute an unacceptable risk” and “reasonably believes that the …would constitute an unacceptable risk” as submitted by the respondent.

139. These submissions by the respondent were at very high level and there was no identification of what ss 31(b), 49(1)(a) and s77(a) of the National Law address. The respondent did not refer to any extraneous material that supported its submission or any authorities.

140. In consideration of the context and purpose of the National Law the assessment of risk must be considered in light of the fact that children attending education and care service premises are young children who have not reached the age of school children. Young children in education and care service premises are more vulnerable to harm from adults than children in primary and secondary schools because of their young age and ability to defend themselves against harm.

141. This is also obvious when one understands that a person may well have a WWCC but be excluded from attending at an education and care service premises.

142. The Tribunal has approached its task, taking into account the object and principles of the National Law, to consider that the correct and preferable decision would be to refuse the application for review if a finding is reached that the applicant may be an unacceptable risk of harm to a child or children if he or she was allowed to remain on the education and care service premises.

Application of the facts to the law

143. The applicant’s evidence was that in 2004 he was becoming more aware of his sexuality as a homosexual man and was only able to connect with other homosexual men online. He joined a Yahoo chat group and was sent the child abuse material and the highly inappropriate material without request.

144. It is not in dispute that the applicant downloaded the child abuse material and the highly inappropriate material, which was not child abuse material. The child abuse material included over thirty still images and one video.

145. The applicant downloaded this material when he was eighteen, in 2004 over twenty years ago. He did not seek out the material or pass the material on to another person. The applicant’s evidence was that he had not viewed the child abuse material since he downloaded it in 2004.

146. The applicant’s evidence was that he did not download the child abuse material for sexual gratification but because he was experiencing intense confusion about his sexual identity and sexual orientation. At this time the applicant had not disclosed to anybody that he was sexually abused by his grandfather when he was about 6 years old. As a child and as a young adult the applicant experienced developmental, learning, emotional and interpersonal difficulties.

147. In 2012, the applicant disclosed to the principal of the school in which he was employed that he possessed child abuse material. In 2012 the applicant was charged with possession of child abuse material contained on 2 CDs and a hard drive.

148. The charges against the applicant were dismissed on the ground of mental health issues.

149. The applicant commenced to be treated by Mr Chown in 2012, following the disclosure to his employer. The applicant has also received treatment from a number of other psychiatrists and psychologists over the years. All of the medical opinions consistently found that the applicant posed a low risk to the safety of children.

150. In 2012 and at the end of 2020 to early 2021, the applicant suffered mental health breakdowns. At this time he sought medical assistance which led to admission into psychiatric units.

151. The applicant commenced teaching in 2011 and taught as a teacher on and off for nearly three years until 2020. There have never been any indications that the applicant’s conduct was inappropriate or suggestive of causing a risk to children during this time. The applicant has consistently worked with children in his role with the Australian Air Force Cadets. There is no suggestion that the applicant’s behaviour or conduct with children was of concern to any person.

152. The unchallenged evidence from the applicant was that he was hypervigilant about child protection issues which he had raised with a principal and other staff in 2012.

153. We do not consider that the applicant was an unsatisfactory witness and reject the respondent’s submission that his evidence should not be relied upon. We accept that some of the time the applicant was giving his evidence, he was frustrated, he digressed, he provided unnecessary and extensive detail, he was an advocate for his case. His evidence as to why he disclosed the child abuse material was inconsistent. He referred to numerous different reasons, he had difficulty identifying the catalyst for the decision to disclose. However, his evidence is consistent with what he had told treating medical practitioners from 2012 onwards. We consider that there were numerous reasons for the disclosure and that at that time, the applicant was experiencing a mental breakdown which would have made it more difficult to provide a rational and logical explanation. While the applicant gave his evidence in an adversarial manner, we do not consider this to lead to a finding that the applicant’s evidence was unreliable because of “unconscious process of dissembling”. Such a finding would need to be grounded on some medical assessment. Mr Chown rejected the proposition put to him during cross examination that the applicant takes liberties with objective reality.

154. The respondent submitted that the Tribunal should make an inference that the applicant downloaded the child abuse material for sexual gratification because it was stored together with the highly inappropriate material and pornographic material and because the file names had names such as “hot boy”, “cute boy” and “2 cute little boys having fun”.

155. The relevant principles as to making inferences can be drawn from Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 362 (“Briginshaw”); Jones v Dunkel (1958-59) 101 CLR 298 at 305.

156. It is not enough that the inference is a mere possibility: it must be one of "probable connection" Seltsam [83]; the inference must be a logical one, and not supposition; and an inference cannot be made where more probable and innocent explanations are available on the evidence.

157. The applicant gave numerous reasons as to why he downloaded the child abuse material including that he was very confused about his sexual orientation and in retrospect he considered that he did it because he was reflecting on being sexually abused as a child.

158. The applicant’s evidence was that he did not download and view the child abuse material for sexual gratification. Mr Chown after treating the applicant in 2012 and 2013 and again in 2021 expressed an opinion that the applicant did not download and view the child abuse material for sexual gratification. Mr Chown is an expert in the field of sexual offending. Dr Ellis in 2016 stated in his report that he found no evidence of a sexual disorder and that the download of the material was more indicative of “sexual experimentation and exploration of identity”.

143. The consistent opinion from the medical experts is that there is no evidence of paraphilia. There is no evidence that had Dr Ellis or Dr Nielssen been aware that the child abuse material was stored in the same folder as the highly inappropriate material a different conclusion would have been reached. The respondent did not lead any evidence or provide any material to the Tribunal to ground its submission. Mr Chown when informed about the highly inappropriate material during cross examination did not change his opinion.

144. The medical opinions are soundly reasoned. The reports considered the circumstances around the applicant coming into possession of the child abuse material, what occurred after the download (material was not distributed, no other child abuse material was discovered by the police in 2012) and that there have been no issues with the applicant’s conduct since 2004. The circumstances around the disclosure of the child abuse material was also relevant. As was the psychological testing and observations that occurred during assessment.

145. There was no evidence that the applicant named the files. It is just as likely that when the applicant downloaded the material, he did it without changing the file names.

146. While there is a possibility that the applicant received sexual gratification when he viewed the child abuse material sometime in or around 2004, we consider that it is more likely that at the time he downloaded the child abuse material he was not sexually attracted to children, consistent with the opinions of the medical experts in sexual offending. In our view, the more probable explanation is the one espoused by the psychologists and not the proposition put by the respondent.

147. A finding that the child abuse material was not downloaded and viewed in 2004 for sexual gratification is an issue relevant in considering whether the applicant may pose an unreasonable harm to children in the future.

148. Even if the Tribunal found that the applicant did download and view the child abuse material in 2004 for sexual gratification, the question would be whether the applicant may download and view the child abuse material now. If there was sufficient possibility of that occurring we would find that the applicant may pose an unacceptable risk of harm posed to children.

149. We accept the applicant’s evidence that he is extremely embarrassed and shamed by his conduct in 2004. He self-disclosed the child abuse material and cooperated with the police in 2013. The applicant has sought out medical assistance and has engaged in therapy for a significant period of time to help him understand his emotions and behaviours.

150. We accept Mr Chow’s assessment of the applicant being emotionally immature in 2004, that he had poor judgment and lacked a depth of experience to inform his decision making.

151. We next come to the issue of the applicant’s mental instability. The respondent’s submissions were that because of his mental conditions that led to mental health breakdowns in 2012 and 2020, the applicant should not be permitted to provide education in approved education and care services. We make the following observations; first, the applicant has a WWC so regardless of any decision made by the Tribunal he is permitted to and does work with children. Secondly, the Tribunal is not deciding whether the applicant can be employed at an approved education and care service in the future, this would be an entirely different process if the applicant wished to complete his studies in early education. The Tribunal is not considering the applicant’s general suitability to work with pre-school children. The only issue before the Tribunal is to determine whether there may be an unacceptable risk of harm to a child or children posed by the applicant.

152. The evidence before the Tribunal is that the applicant’s mental health has been fragile for many years in his childhood and in adult life. In 2012-2013 and again in 2020 for a short period of time he was admitted into mental health facilities.

153. When the applicant experienced a mental health crisis, he sought out medical support. There is no evidence that the applicant was ever a risk to another person because of poor mental health. In January 2021, the applicant threatened to kill himself. This was stimulated as a result of the death of a significant support person as well as problems with the Department, NESA and described by the applicant as a “significant period of crisis”.

154. As to the road accident in May 2023, we cannot decide one way or another whether the applicant intended to harm himself. Dr Goldstein opined in November 2023 that the applicant was not suicidal or melancholic and was recovering from the acute stress reaction and adjustment to physical injuries suffered as a result of the road accidence.

155. All of the medical evidence, particularly from Mr Chown, Dr Nielssen, Dr Ellis and Dr Wang is that the applicant’s mental health instability would not cause or lead to further offending. When the applicant experienced a mental health crisis in 2012-2013 and in 2020 there was no conduct that could have been considered to be a risk to children. In all of the medical reports before the Tribunal, there are assessments that the risk of future offending is low. Mr Chow in his second report at pg 11 stated that in his opinion there was “no direct link between the applicant’s mental health and risk of offending behaviour.”

156. Mental health issues should not exclude a person from providing education and care to children. In this case, there is no evidence that the applicant’s mental health issues may lead him to download child abuse material or highly inappropriate material or harm children in any other way.

157. The allegation made against the applicant is that he is sexually interested in children, particularly pre-pubescent boys and that his poor mental health may lead him to harm children. The respondent’s submission was that the applicant may sexually abuse or exploit children. This is a very serious allegation and there is a clear relevance of the allegation to the safety of children. However there is no evidentiary support for the allegation.

158. Quite the opposite is the case. First, there is unchallenged evidence before the Tribunal that the applicant has worked with children since 2006 with no allegations or concerns about his conduct. From 2018 the applicant worked with children as part of his role of being a volunteer in the Australian Air Force Cadets.

159. Secondly, the opinion from Mr Chow in particular is that the applicant is protective of children. Thirdly, we accept the applicant’s evidence that he has a good insight of safety issues. This is supported by Mr Chow at pg 12 of the second report:

Increased insight and recognition of the damaging effects of child sexual abuse on the victims their families and communities.

Increased awareness of the gravity of child protection concerns and understanding of the roles and responsibilities of anyone working in a capacity that involves contact with children or young people and of the importance of closely following child protection processes.

176. Fourthly, the applicant has protective supports around him. Dr Ellis in his report dated May 2016 stated the following words about the applicant. We have changed the quote by deleting the applicant’s name and inserting the word, “applicant”:

For most factors associated with future sexual offending (applicant) presents a positive profile he has stable volunteer employment study and accommodation support of a pro social family and peer group and no evidence of an antisocial personality style he has good professional supports his prime mental disorders are now in full sustained remission there is no additional sexual offending or other offending history he does not present with deviant sexual arousal paraphilia it does not have a substance use problem he has satisfactory to ruin completed mental health treatment and supervision for his prior offences he shows good current coping and organisational skills he displays attitudes that do not support sexual offending of any kind.

177. We are not suggesting that the applicant may not in the future again suffer a mental health deterioration that may require medical intervention but based on the evidence before the Tribunal, if the applicant was to suffer a mental health deterioration he is likely to seek out assistance and support and not harm any child; Mr Chown’s second report states at pg 9 that the applicant has, “actively and willingly sought psychological treatment to assist not only during times of crisis, but also to help him develop greater resilience and emotional self-management.”

178. The assessment of risk is a forward looking one. The “possess child abuse material” charges in 2012 are material and have been taken into account. The charges are significant in assessing whether there may be an unacceptable risk of harm to a child or children if the applicant was permitted to provide or participate in education and care services to children. However, we find that the submission made by the respondent that the applicant may sexually abuse or exploit children to be without foundation.

179. The reason why the applicant came to the respondent’s attention was because a parent sent an email to the child care centre that stated that the applicant had, “previously been raided for child pornography and was dismissed… he was on the do not employ list with the department of education… I wouldn’t leave him alone with any of the kids and watch him carefully.”

180. The email from the parent referred to above is not accurate in numerous regards. It gives the impression that the applicant did not disclose to his employer that he downloaded the child abuse material and that he has been placed on the NTBE List because he was “raided for child pornography”. As we have set out in detail above, that is not the evidence before the Tribunal.

181. We are acutely aware that our role is to uphold the objects of the National Law which is to, “ensure the safety, health and wellbeing of children attending education and care services”. It is critical that parents and carers have confidence in the services provided to their children and that they are satisfied that the services provided are safe and caring.

182. This Tribunal must determine whether there, “may be an unacceptable risk of harm” to a child or children if the applicant  was “allowed to remain on the education and care service premises”.

183. In determining this question, the Tribunal has assessed the risk based on the evidence and the material before the Tribunal. The assessment of risk depended on a number of factors; CXZ [53] including the circumstances surrounding the particular incident and whether the incident was a single incident or was in “the course of conduct”; BKE [33].

184. We do not consider that the applicant may be an unacceptable risk of harm to a child or children if he was allowed to remain on the education and care service premises. As such, the correct and preferable decision is for the Prohibition Notice to be cancelled.

185. To prohibit the applicant from working in education and care service premises would in our view be punitive as it would be based not on an assessment of real and appreciable current and future risk to children but because as an eighteen year old, over twenty years ago he downloaded child abuse material and or because he has or has had in the past a mental health illness.

Order

186. We make the following Order:

1. Prohibition Notice issued on 7 December 2023 is cancelled.

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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: 05 May 2025