GJM v Children's Guardian

[2025] NSWCATAD 48

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GJM v Children’s Guardian [2025] NSWCATAD 48

Hearing dates:

29 November 2024

Date of orders:

27 February 2025

Decision date:

27 February 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member
E Hayes, General Member

Decision:

(1) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of commit act of indecency with a person aged 16 years or over contrary to s 61N(2) of the Crimes Act 1900 of which he was convicted on 11 May 2000.

(2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal orders the Children’s Guardian to grant the applicant a clearance forthwith.

Catchwords:

ADMINISTRATIVE LAW – Application for review under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – Applicant a “disqualified person” – Conviction for offence of commit act of indecency with person 16 years or over contrary to s 61N(2) (repealed) of the Crimes Act 1900 – Presumed to be a risk to the safety of children –Whether the applicant has proven to the contrary – Enabling order granted

Legislation Cited:

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

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Summary Offences Act 2005 (Qld)

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

BFX v Children’s Guardian [2014] NSWCATAD 115

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

CHB v Children’s Guardian [2016] NSWCATAD 214

Children’s Guardian v CVE [2017] NSWSC 1342

Commission for Children and Young People v V [2002] NSWSC 949

Commissioner for Children and Young People v FZ [2011] NSWCA 111

CRG v Children’s Guardian [2017] NSWCATAD 295

CTE v Children’s Guardian [2018] NSWCATAD 28

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

CXZ v Children’s Guardian [2020] NSWCA 338

DAI v Children’s Guardian [2017] NSWCATAD 308

DGS v Children’s Guardian [2018] NSWCATAD 302

Director of Public Prosecutions v Smith [1991] 1 VR 63

EOL v Children’s Guardian [2021] NSWCATAD 146

Hogan v Hinch (2011) 243 CLR 506

ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162

McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70

PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514

Sinclair v Maryborough Mining Warden (1975) 132 CLR 473

Smith v Commissioner of Police [2014] NSWCATAD 184

Tilley v Children’s Guardian [2017] NSWCA 174

VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789

ZZ v Secretary Department of Justice [2013] VSC 267

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GJM (Applicant)
Children’s Guardian (Respondent)

Representation:

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

File Number(s):

2024/00199115

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction and broad overview

1. In this case the applicant asked the Tribunal to undertake an administrative review of the respondent’s decision dated 29 April 2024 (the Refusal Decision) to refuse to grant a working with children check clearance to him on the grounds that he is a “disqualified person” within the meaning of s 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act).

2. The applicant is said to be a “disqualified person” as a result of having been convicted on 11 May 2000 of an offence which is specified in Schedule 2 of the Act to be a “disqualifying offence”, namely the offence of commit act of indecency with a person aged 16 years or over contrary to s 61N(2) of the Crimes Act 1900 (NSW) (the Disqualifying Offence).

3. Pursuant to s 28 of the Act, the applicant sought an enabling order from the Tribunal declaring that he is not to be treated as a disqualified person for the purposes of the Act in respect of his 2000 conviction and an order that the the respondent grant him a working with children check clearance.

4. He requires an enabling order and a clearance to enable him to work, potentially, as a bus driver, although he has experience in teaching English online to adults and children in China and Taiwan and so he nominated teaching as the intended paid work. He also said that he wanted to remove the stigma of being a disqualified person under the Act and therefore ineligible for a clearance, if he was asked to help out in some way doing volunteering work involving children.

5. In any proceedings where an enabling order is sought, it is presumed (pursuant to s 28(7) of the Act) that the applicant poses a risk to the safety of children unless the applicant proves to the contrary. The onus is therefore on the applicant to demonstrate that he does not pose a real and appreciable risk to children, displacing the presumption. He has an obligation under s 28(5) of the Act to fully disclose to the Tribunal any matters relevant to his application.

6. If the Tribunal is satisfied that the applicant has displaced the presumption that he poses a real and appreciable risk to the safety of children, it must then consider the supplementary “reasonable person” and “public interest” tests in s 30(1A) of the Act and be satisfied that both tests are met before making an enabling order.

7. The applicant contended that he does not pose a risk to the safety of children, arguing that the offence occurred 25 years ago and is the only conviction on his criminal record, and that there is no likelihood of any repetition of his offending. He also contended that he met the supplementary tests under s 30(1A) of the Act, that a reasonable person would have no problem having the applicant in a position of trust with respect to their children and not be a danger to them. He asserted his right to work as grounds for arguing that he be granted an enabling order, and we understood this to be his argument addressing the public interest requirement.

8. The respondent initially adopted a neutral position in relation to the application for an enabling order, subject to hearing the applicant’s oral evidence and considering all material provided to the Tribunal. However, after being apprised of a document filed by the applicant setting out his reasons for appealing the Refusal Decision, but which had apparently not been served on the Children’s Guardian, the respondent advised the Tribunal before cross-examining the applicant that the application was opposed.

9. In opposing the application, the respondent contended that the applicant lacked insight into the effect of his offending and failed to take responsibility for his own behaviour. The respondent also relied upon the absence of expert evidence as to the applicant’s level of risk and whether he would repeat his behaviour, to argue that the presumption had not been displaced.

10. For the reasons that follow, the Tribunal found that the applicant does not pose a real and appreciable risk to the safety of children, and that the presumption has been displaced. The Tribunal decided to grant the enabling order and ordered the respondent to issue the applicant a clearance forthwith, being satisfied that the “reasonable person” and “public interest” tests had both been met.

Non-publication order and use of pseudonym

11. To protect against the identity of an alleged victim being disclosed, an order was made on 5 June 2024 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. The applicant’s name has been anonymised with the pseudonym GJM and the names of the applicant’s family members have not been disclosed.

Material and evidence before the Tribunal at the time of hearing

Filed on behalf of the applicant

12. In support of his application for administrative review which attached a copy of the Refusal Decision, the applicant filed the following material:

1. a single-page document titled “REASONS for appeal of decision” filed on 3 June 2024, containing statements of fact by the applicant and also setting out his grounds for seeking a review of the Refusal Decision (Grounds Document) (marked for identification as “A1”);

2. a bundle of documents filed on 7 November 2024 comprising:

3. a 5-page statement by the applicant dated 13 September 2024 (Written Statement) (marked for identification as “A2”);

4. a statement by the applicant’s daughter dated 20 September 2024 (marked for identification as “A3”);

5. submissions/legal argument together with cases cited for reference, totalling seven pages (not marked).

Filed on behalf of the respondent

13. The following material was filed on behalf of the respondent:

1. Evidence Bundle filed on 22 July 2024 (marked for identification as “R1”);

2. Further Evidence Bundle filed on 26 November 2024 (marked for identification as “R2”);

3. written Submissions filed on 26 November 2024 (not marked).

Oral evidence and submissions at the hearing

14. The applicant was cross-examined.

15. Both parties made oral submissions.

Background (family and employment)

16. The applicant is currently aged 56 and is separated from his wife. He has two adult daughters with his ex-wife and three grandchildren. He currently resides in New South Wales with one of his daughters as part of an extended family co-habitation arrangement, and helps share the rent and look after his grandchildren.

17. The applicant provided details of his work history from 1999. He appears to have been living in New South Wales at the time of the Disqualifying Offence which took place on 9 July 1999.

18. However, in early 1999, and before the Disqualifying Offence, the applicant and his wife had made a decision to relocate to Queensland to set up a tailoring business, predominantly for his ex-wife. They moved to Queensland in September 1999 to set up the business which employed four female staff. The customers were mostly female, in an age range of around 15 to 65 years. The tailoring work included altering school uniforms for children of all ages and gowns for events such as school formals and debutante balls.

19. From 2001 to 2012, the applicant’s career as owner of the alterations business continued on, with the exception of a couple of changes in direction along the way.

20. For a period of around 7 months in 2001, he also worked in martial arts, selling memberships in a martial arts club and conducting classes to children and young adults. He found this role rewarding, but resigned in 2002 when he was required to disclose his criminal record.

21. The applicant’s marriage started to break down and he separated from his wife in 2002. Despite this, he continued to work in the tailoring business. The separation was apparently amicable, with no custody or property disputes. The parties agreed that the children would live with their mother and there was no limitation on the children visiting the applicant, or the applicant visiting them.

22. For a period of around four years (from 2005) the applicant became a motor vehicle sales consultant. There is some inconsistency in the precise dates for this change in career and his return to the tailoring business (in both 2007 and 2012), but nothing turns on that.

23. There is very little information about the applicant’s work history outside the clothing industry from 2012 (although we note that the tailoring business was still operating in 2014). We simply note that he became a “born again” Christian in 2015, and was baptised.

24. Then, between 2018 and 2022, we understand the applicant’s domicile and work changed quite significantly, with a move to Thailand. He was engaged as a consultant through two Chinese education companies to teach English online to students (both adults and children) from China and Taiwan. The applicant stated that the Chinese government banned online teaching to children in 2020, and that he did not renew one of his teaching contracts. We note some fluidity around these dates but, again, do not see this as a significant issue.

25. His return to Australia in 2022 coincided with the birth of his third grandchild. He applied for work in mining. He also applied to the Australian Defence Force (ADF), attending three interviews and psychological assessments. He is currently awaiting an enlistment offer, but considers this to be extremely unlikely due to his age.

26. At the time of the hearing before us, the applicant was working in casual employment with a large supermarket chain in a regional location in New South Wales as an Online Shopper. This work does not involve dealing with children.

27. The applicant applied for a paid clearance on 10 April 2024, nominating “education” as the child-related employment sector, in light of his tutoring experience. In a phone call with an officer of the Children’s Guardian on 29 April 2024, the applicant said he was potentially looking to obtain a role as a bus driver and had been uncertain of the sector to nominate when applying for a clearance, but thought that “education” would have more “weighting” than simply being a driver.

28. On 29 April 2024, having become aware that the applicant had been convicted (as an adult) of a disqualifying offence as set out in Schedule 2 of the Act, the respondent notified the applicant that his application had been refused because he is a “disqualified person” under s 18(1) of the Act. The respondent advised the applicant that no clearance would be granted because of his disqualified person status and that he was barred from working with children for 5 years. The respondent also advised the applicant of his right to apply to the Tribunal for administrative review under s 28 of the Act.

29. On 29 May 2024, after receiving the respondent’s notification, the applicant filed his application for administrative review with the Tribunal.

The disqualifying offence

30. The Disqualifying Offence occurred on 9 July 1999. At the time, the victim was 17 years of age and was the sister of a neighbour to the applicant (who was then aged 30). The victim occasionally house-sat for her sister and also occasionally looked after the applicant’s young children. The relevant conduct occurred when the victim was at the applicant’s house early in the morning waiting for him to give her a lift to a friend’s house (apparently previously arranged by the applicant’s wife).

31. The applicant went to have a shower and while he was in the shower, he asked the victim to bring some shaving cream to him. She looked in the kitchen, then the applicant’s bedroom and finally the bathroom where the shaving cream was found. When she was in the bathroom and passed the shaving cream to him, the shower door was partly open and the applicant was standing naked in the shower, with an erection.

32. The victim also stated that after she left the bathroom, the applicant asked her “[victim’s name], if I asked you a question would you tell anyone?” The victim replied: “Well it depends what it is.” The applicant then asked:
    “Can you wash my back – or scrub my back?” The victim responded: “No”. She returned to the lounge for about a minute, and then left the house and ran to her friend’s house.

33. On 9 February 2000, the proceedings for the disqualifying offence were heard in the Local Court. The applicant pleaded not guilty and gave evidence. It is the conduct of allowing the victim to see his erect penis which the Local Court Magistrate found gave rise to the offence of act of indecency:

“And at prima facie, as I ruled then, the behaviour of the defendant, the alleged behaviour of the defendant in what he did in the shower, and that is accepting the evidence of the victim at its highest, and that was that he had an erection, that she saw it, that he allowed her to see it, that clearly must be, in my view, if it is proven by the Court to be an act of indecency.”

34. The applicant was convicted and received a conditional discharge with recognizance for a period of 3 years (a good behaviour bond) and a fine of $2,000.

35. The applicant appealed the conviction on the ground that he was not guilty. On 11 May 2000, his appeal in the District Court was dismissed and his conviction was confirmed. The period of recognizance was reduced to 12 months and the fine was reduced to $1,000.

36. In his Written Statement dated 13 September 2024 to the Tribunal, the applicant stated that there were “extenuating circumstances” and a “litany of errors” that led to his conviction. At the same time, his Written Statement acknowledged that none of those circumstances alter the fact that he acted inappropriately towards the victim. However, we note that his acknowledgement of wrongdoing was contextualised as a reference to the applicant asking the victim to bathe him, and not in the context of him allowing her to see his erect penis (a matter on which he has said on a number of occasions he was not confident had occurred).

37. The respondent submitted that the meaning of the applicant’s statement (that there were “extenuating circumstances” and a “litany of errors” that led to his conviction) was unclear, and possibly indicated that the applicant had not demonstrated insight into the circumstances of his offending and believed his conviction was unjust or inappropriate.

38. Also in his Written Statement, the applicant said that if the same conduct happened towards one of his daughters, he would be upset with their lack of situational awareness if they were nearing the age of adulthood. The respondent submitted that this comment suggested the applicant was placing responsibility on a child to recognise and avoid a situation where the conduct of an adult is inappropriate.

39. Under the heading “Consideration”, we consider those and other matters in the evidence before us which are relevant to our assessment of whether the applicant has displaced the presumption that he poses a risk towards the safety of children.

40. Before doing so, we identify the relevant legislative provisions and legal principles to be applied in our assessment of risk and determination of the application.

Legislative framework and legal principles

Object of the Act

41. The object of the Act is to protect children by not permitting certain persons to engage in “child-related work”, and by requiring persons engaged in child-related work to have working with children check clearances:

3 Object of Act

The object of this Act is to protect children—

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

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

42. There are two classes of clearance: volunteer and non-volunteer: s 12(1) of the Act.

43. “Children” is defined in s 5(1) of the Act to mean “persons under the age of 18 years”.

44. “Child-related work” is defined in s 6 of the Act as involving direct contact by a worker with a child or children and that contact is part of or more than incidental to the work. It includes clubs or other bodies providing programs or services for children: s 6(2)(d) of the Act.

Paramount consideration in the operation of the Act

45. In exercising its functions under the Act, the Tribunal is to have regard to the “paramount consideration” in the operation of that Act as set out in s 4:

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

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

46. The term “child abuse” as referred to in s 4 of the Act is not defined in that Act. However, in BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal held that child abuse would be aptly described as “maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these and includes exposure to harm caused by or being subjected to family violence”.

The meaning of “risk to the safety of children”

47. The meaning of “risk to the safety of children” is defined in s 5B of the Act to mean a “real and appreciable risk to the safety of children.” The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949 at [42]:

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

48. His Honour’s consideration of the meaning of risk was cited with approval in a number of cases before the Tribunal and the NSW Supreme Court: CTE v Children’s Guardian [2018] NSWCATAD 28 at [30]; BKE v Children’s Guardian [2015] NSWSC 523 (BKE) at [26] and AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 (AYU) at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ v Children’s Guardian [2020] NSWCA 338 (CXZ) at [26].

Jurisdiction of the Tribunal is protective, and not punitive, in nature

49. The jurisdiction of the Tribunal is protective, and not punitive, in nature: DAI v Children’s Guardian [2017] NSWCATAD 308 (DAI) at [8]; AYU at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on a person such as the applicant, but to eliminate possible risks to children: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU at [34].

50. More recently, in CXZ, Basten JA at [23] elaborated on the object of the Act, specifically with respect to it not being concerned with imposing penalties:

“Legislation such as [the Act] is, by its nature, protective; it does not impose penalties on individuals but is more closely analogous to licensing legislation which is designed to protect the public from persons who are not of good character or otherwise cannot be trusted to maintain professional discipline and trust in the exercise of authority or power over others.”

Framework in the Act relating to disqualified persons

51. Under s 18(1) of the Act, the Children’s Guardian must not grant a clearance to a “disqualified person”, being a person convicted of an offence specified in Schedule 2 of that Act.

52. The applicant is a “disqualified person”, having been convicted of an offence under s 61N of the Crimes Act 1900, as specified in Schedule 2.1(1)(e) of the Act. This means that the applicant cannot work with children without an enabling order (requiring the oversight of the Tribunal) enabling him to obtain a clearance.

53. Pursuant to s 28(1) of the Act, a disqualified person may apply to the Tribunal for an “enabling order” declaring that they are not to be treated as a disqualified person for the purposes of that Act in respect of a specified offence.

54. An enabling order cannot be made subject to conditions: s 28(8) of the Act.

55. The Tribunal may, on application by a disqualified person under s 28 of the Act, make two separate orders:

1. an order which declares that the person is not to be treated as a disqualified person for a specified offence, pursuant to s 28(2) of the Act;

2. an order that the Children’s Guardian grant the person a clearance, pursuant to s 28(6) of the Act.

56. Section 28 of the Act does not specify the test to be applied in determining whether to make an enabling order. Relying upon the decision in EOL v Children’s Guardian [2021] NSWCATAD 146 at [18], the correct test for the Tribunal to consider is whether it is positively satisfied that the applicant does not pose a risk to the safety of children. In BKE at [25], the Supreme Court previously accepted that this approach is consistent with s 18(2) of the Act, which imposes the same threshold when the Children’s Guardian is required to undertake a risk assessment.

Obligation to fully disclose relevant matters to the Tribunal

57. Pursuant to s 28(5) of the Act, an applicant must fully disclose to the Tribunal any matters relevant to the application for an enabling order.

Findings of fact and assessment of risk

58. The correct approach to fact-finding in the context of the Act was explained by Beech-Jones J in BKE at [33]:

“[I]t 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.”

59. This approach has been approved by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35] and CXZ at [7(a)] and [28].

Mandatory considerations under s 30(1) of the Act to determine risk and whether to make an enabling order

60. In determining whether the applicant poses a risk to the safety of children, the Tribunal must consider the matters set out in s 30(1) as set out below:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part—

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

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

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

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

(g) the person’s present age,

(h) the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

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

(i1) any order of a court or tribunal that is in force in relation to the person,

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

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

(k) any other matters that the Children’s Guardian considers necessary.

Further considerations under s 30(1A) of the Act before making an order for the Children’s Guardian to grant a clearance

61. If the Tribunal is minded to make an enabling order, it may also consider making an order for the Children’s Guardian to grant the applicant a clearance in which case it must then consider the supplementary tests set out in s 30(1A) of the Act:

(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.

62. The Tribunal is precluded from making an order that the Children’s Guardian grants the applicant a clearance unless both the supplementary tests in s 30(1A) of the Act are satisfied: Children’s Guardian v CVE [2017] NSWSC 1342 at [23].

The “reasonable person” test

63. The “reasonable person” test requires the application of an objective standard based upon the views of the “reasonable person”. The “reasonable person” is taken to have knowledge of the applicant’s disqualifying offence(s), the surrounding circumstances of those offences, any other criminal history, the length of time and conduct since the offence(s) and any expert assessment made of the applicant: DAI at [91]; CRG v Children’s Guardian [2017] NSWCATAD 295 (CRG) at [95]; CHB v Children’s Guardian [2016] NSWCATAD 214 (CHB) at [127]. It assumes that the “reasonable person” is acquainted with all the relevant facts of which the Tribunal is aware: CHB at [127]; CYY at [26]; PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [57].

64. The legislation in Victoria contains provisions similar to those in s 30(1A) of the Act. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36] (VQB), the Tribunal held that an objective test was called for by the legislation:

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

65. The reasonable person approach taken in VQB was endorsed in NSW in CRG at [85] and DAI at [90]. In DAI at [91], the Tribunal said:

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

66. A clearance, if granted, provides a clearance for all purposes and cannot be made subject to conditions: BKE at [33]; DGS v Children’s Guardian [2018] NSWCATAD 302 at [56]-[66]. Accordingly, the reasonable person test requires that the reasonable person permit direct, unsupervised contact of their child with the applicant in the course of any child-related work, and this includes not only the work for which the applicant is now trained or the work in which the applicant proposes to engage.

The “public interest” test

67. The “public interest” test requires the Tribunal, before making an order enabling the applicant to work with children, to be satisfied that it is in the public interest to make such an order.

68. The expression “in the public interest” was considered by the Federal Court in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 per Tamberlin J at [9]:

“The expression ‘in the public interest’ directs attention to that conclusion or determination that best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances.”

69. Additionally, the notion of “public interest” was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]:

“The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.”

70. The matters to be considered by the Tribunal in determining whether it is in the public interest to grant an order are not specified in the Act. However, guidance on the context in which “public interest” is to be considered can be found in Hogan v Hinch (2011) 243 CLR 506 at [31] per French CJ:

“When used in a statute, the term derives its content from ‘the subject matter and the scope and purpose’ of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest.”

71. Accordingly, in proceedings under the Act, the “public interest” must be considered in light of the paramount consideration under s 4 of that Act, namely, to ensure the protection of children from sexual or physical harm.

72. The purpose of the public interest test is to give priority to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75]. The “public interest” is thus the interest of the public at large, and not the interest of a section of the public or an individual which does not overlap with the public interest: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 (Sinclair) per Barwick CJ at 480.

73. As explained by the Court of Appeal in Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75, citing Sinclair:

“The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.”

74. When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (ZZ) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]:

“In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.”

Consideration

75. The issue for this Tribunal to determine is whether, applying the test in s 18(2) of the Act, we are positively satisfied that the applicant does not pose a risk to the safety of children.

Mandatory considerations in s 30(1)(a)-(k) of the Act

76. In determining whether to make an enabling order, we are obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the Act. If minded to make an enabling order, the Tribunal must then consider the matters set out in s 30(1A) of the Act dealing with the “reasonable person” and “public interest” tests.

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: s 30(1)(a)

77. The Disqualifying Offence occurred on 9 July 1999. The applicant was charged on 31 August 1999 with one offence of act of indecency with person 16 years or over, contrary to s 61N(2) (repealed) of the Crimes Act 1900.

78. Although s 61N(2) has since been repealed, we accept for the purpose of this application that the Disqualifying Offence involved conduct in the nature of a sexual act towards another person without their consent which continues to be an offence in New South Wales pursuant to s 61KE of the Crimes Act 1900:

61KE Sexual act

Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally—

(a) carries out a sexual act with or towards the complainant, or

(b) incites the complainant to carry out a sexual act with or towards the accused person, or

(c) incites a third person to carry out a sexual act with or towards the complainant, or

(d) incites the complainant to carry out a sexual act with or towards a third person,

is guilty of an offence.

Maximum penalty—Imprisonment for 18 months.

79. The maximum penalty provided in s 61N(2) was also imprisonment for 18 months. As at the date of the Disqualifying Offence, the offence in s 61N carried the least severe maximum imprisonment sentence.

80. The applicant was convicted in the Local Court and sentenced to a period of recognizance for 3 years rather than a term of imprisonment. On appeal, the conviction was confirmed, however, the period of recognizance was reduced to 12 months. Nonetheless, since the Disqualifying Offence is inherently sexual in nature, it is regarded as a relatively serious offence. The victim was under the age of 18 and therefore a child within the meaning of the Act, which increases the seriousness of the conduct.

Weight to be given in assessing the applicant’s risk to children

81. In criminal proceedings, the criminal standard is applied and allegations must be proved “beyond reasonable doubt”. In light of the applicant’s conviction, it is not necessary for this Tribunal to engage in a “fact-finding” exercise to decide whether the allegation has been proven. In determining the application before us, we are to decide, on the balance of probabilities, whether the historical aspect of the offence and the applicant’s conduct since the offence demonstrate that, on the balance of probabilities, he does not pose a real and appreciable risk.

82. The applicant submitted that he presents no risk to children or vulnerable people because the offence took place 25 years ago and was completely out of character as evidenced by his behaviour in subsequent years.

83. This is a strong argument favouring the applicant and we give a reasonably substantial amount of weight to it in our risk assessment.

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)

84. As already noted, the Disqualifying Offence occurred 25 years ago.

85. Since then, the applicant’s conduct has not been the subject of any further adverse allegations, complaints, criminal charges or convictions for offences involving similar conduct.

86. The applicant was charged with an offence of urinating in a public place under s 7(1) of the Summary Offences Act 2005 (Qld) on 25 July 2009. He was fined $75, with no conviction recorded. That offence occurred more than 15 years ago and we find it has negligible bearing on our assessment of the applicant’s risk.

The age of the person at the time the offences or matters occurred: s 30(1)(c)

87. The applicant was 30 years of age at the time of the Disqualifying Offence.

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: s 30(1)(d)

88. The victim was aged 17 years of age at the time of the Disqualifying Offence, and a child for the purpose of the Act.

88. The victim was therefore vulnerable because of her age. She was also dependent upon the applicant for a lift to her friend’s house on the day of the offence and he was in a position of being entrusted with her care. However, there is no evidence that the relationship was personal or significantly close such that the applicant would exercise a high degree of control over the victim.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(1)(e)

90. The difference in age between the applicant and the victim was 13 years.

91. The applicant knew the victim as a neighbour and friend, as she often visited his home and had at times babysat his two daughters. Otherwise, we have addressed the nature of the relationship above, with respect to s 30(1)d).

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f)

92. The applicant knew the victim was a student in high school, and acknowledged in his oral evidence that the victim was a student in high school and around 17 years of age.

The person’s present age: s 30(1)(g)

93. The applicant is currently 56 years of age.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

94. The seriousness of the applicant’s criminal history and his conduct since the Disqualifying Offence was discussed above in relation to ss 30(1)(a) and 30(1)(b) of the Act.

95. With the exception of his conviction in 2000 for the Disqualifying Offence and being charged with the offence of urinating in a public place in July 2009 (with no conviction recorded), the applicant’s criminal history has otherwise been clear for a period of approximately 25 years.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

96. There is no question that, if the applicant was to repeat the conduct which led to the Disqualifying Offence against a child, the child would suffer significant emotional and psychological harm.

97. The applicant has not provided a report from a psychologist that may have assisted in the Tribunal’s assessment of his risk and the likelihood of repeating his offending conduct. His evidence is that he has never needed psychological counselling and that he does not have a regular GP. Despite making enquiries of two psychologists to obtain an assessment, he was advised it would be November 2025 for an appointment in the area where he lives. He understood that obtaining an assessment would require four or five sessions, and this did not assist with the timeframe set down for hearing this application.

98. We note that the provision of an expert psychologist’s report is not a mandatory requirement, and the absence of such a report is thus not determinative of his application, and is not fatal to it.

99. In the circumstances, this Tribunal considers what inferences may be drawn from the evidence before it, when making an assessment of future risk. As explained by Basten JA (in dissent) in CXZ at [24]:

“The [Child Protection (Working with Children) Act] provides no constraint on the kind of material which may be relied upon by the Children’s Guardian in making an assessment of future risk. In circumstances where the Children’s Guardian is not required to hold a hearing, some latitude must be allowed to the Guardian in determining what material is relevant and what inferences should be drawn from the material, subject no doubt to general obligations to allow the applicant to respond. (There may be circumstances in which information is supplied confidentially and where it is not appropriate to provide it, or at least its source, to an applicant for response.) The same approach should be adopted by NCAT, acknowledging that different procedures apply.”

100. Past conduct is generally regarded to be an indication of likely future conduct. In this regard, we note that neither before the Disqualifying Offence nor in the 25 years since, the applicant has not been charged or convicted of any criminal offences of a similar nature to that offence. He has no records with the Department of Communities and Justice for being a person of interest with respect to children (including his own). There are no police records pertaining to the application regarding domestic violence incidents. On the evidence of his daughter, he has been a caring and protective father and grandfather.

101. The impression we formed when hearing his oral evidence is that he was acutely embarrassed by the offence and had kept it to himself, not sharing it with others. We accept his evidence that, in connection with his clothing alteration and repair business, he has measured and fit thousands of customers (including teenagers being measured and fitted for their school formal gowns or debutante gowns) and that no customer was ever at risk from conduct or behaviour from him that was inappropriate. In closing oral submissions, the applicant pointed out that he was often alone with clients, measuring their bodies in a confined space, and that he always acted appropriately and professionally. There is no evidence before us such as a reference from a staff member to corroborate his contention. We accept that he kept information about the Disqualifying Offence to himself and so no reference was provided. Equally, there is no evidence before us to contradict the applicant’s contentions about how he conducted himself in that environment.

102. The applicant also described becoming a born again Christian in 2015 as “a very cathartic moment”, and said he was baptised by a pastor whom he also described as a friend. We have no reason to doubt the sincerity of the applicant’s statement. However, no reference was provided by his pastor to attest to the applicant’s conversion or the impact of the event upon him. It may well be that such an event could be regarded as a protective factor. However, we have no further information about his insight into, or acceptance of accountability for, his offending conduct associated with this apparently significant event, and simply take it into account as part of his overall conduct after the Disqualifying Offence, as being indicative of future risk.

103. We are of the view that the applicant’s conviction for the Disqualifying Offence has been a protective factor against any further conduct of a similar nature.

104. We accept the applicant’s evidence that the likelihood of him re-offending is low due to the time which has elapsed, and that he has not further offended.

105. On the strength of the evidence before us as to his prevailing conduct over most of his adult life, we are of the view that the likelihood of the applicant repeating his offending conduct is extremely low.

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

106. The Tribunal understands there are no orders of a court or tribunal in force in relation to the applicant to be taken into consideration.

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

107. In support of his application, the applicant provided information in his Grounds Document, his Written Statement, a written (undated) response to the respondent’s questions dated 7 June 2024 and written Submissions to the Tribunal.

108. He also provided a confirmation from the Australian Government Security Vetting Agency (AGSVA) that he had been found suitable to hold an Australian Government NV1 security clearance with effect from 12 October 2024. The applicant said he had fully disclosed his conviction in his application for employment with the Australian Defence Force (ADF) and contended that the clearance from AGSVA demonstrated that he was an honourable person and of good character. We note that the security clearance is not determinative of the applicant’s risk towards children and is simply confirmation that he has been assessed to be eligible and suitable for consideration as an officer of the ADF.

109. Further, he provided a statement from his daughter who attests to the applicant having been a consistent source of support, care and guidance in her life (she is now around 23 years of age).

110. She said that she had been made aware by her mother a few years ago of her father’s criminal conviction and she was shocked, especially as she has been a victim of sexual assault at the age of 15/16. She said that her father had not had reason to bring the matter up and she had never witnessed any behaviour to question his trustworthiness or integrity.

111. Her statement corroborates the applicant’s account of an amicable separation with her mother when she was five years of age. When she was 14 and experiencing some rebellious times, she lived with the applicant for around a year and then returned to the care of her mother. At the age of 17, she again returned to live with her father. She said that he had been a good person to her and her friends and that they never felt threatened or unsafe. She confirmed that the applicant now lives with her, and hopes that he stays involved in the upbringing of her children including being involved with any sporting endeavours they may become involved in.

112. Her statement is that she trusts her father with her own children and anyone else’s children. She believes that he is of no danger to vulnerable people of any kind.

113. We accept that the applicant’s daughter has reasonable knowledge of the applicant’s criminal conviction and has made her statement openly and sincerely. We make an appropriate discount on the weight to be given to the statements because of the nature of her relationship with the applicant and her reliance upon him for their current living arrangements. However, we do not discount them entirely and some of her statements have relevance when assessing his risk and considering the “reasonable person” and “public interest” tests.

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

114. The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 36A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.

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

115. In closing submissions, the respondent opposed the application, arguing that the applicant demonstrated a lack of insight (both at the time of the Disqualifying Offence and at the time of the hearing) and a lack of accountability. The respondent also argued there was a lack of evidence (including a lack of psychological evidence as to risk), sufficient to displace the presumption that the applicant poses a risk to the safety of children.

116. The respondent contended that the overall conduct of the applicant surrounding the Disqualifying Offence demonstrated that he acted deliberately, with an intention for the victim to see him naked, with an erect penis, and that it was sexually motivated. Further, the respondent contended that the applicant’s perception that the victim may have sought to explore a sexual encounter in circumstances where she was vulnerable, was a cause for concern.

117. The respondent contended that, in pleading that he was not guilty at trial (whilst acknowledging that his behaviour had been inappropriate), serious doubt was raised as to whether he had accepted accountability for his criminal conduct.

Assessment of the applicant’s risk

118. It was not easy to reconcile some of the applicant’s statements at various points in time, including when giving his oral evidence. He appeared emotional and flustered. As previously noted, his embarrassment about the Disqualifying Offence was very apparent and it was obvious that he was having difficulty articulating the specific allegation with which he was charged and convicted. He expressed concern that his clumsy use of language, both written and orally, may tend to convey the wrong meaning or create the wrong impression.

119. We have carefully considered his written statements and oral testimony in order to reach a point of satisfaction as to whether he has displaced the threshold presumption that he poses a risk to the safety of children. This is particularly important when evaluating the applicant’s insight into the effect of his conduct upon the victim and whether he has accepted accountability for his conduct, and is remorseful.

120. Whilst he appeared to contradict himself at times and occasionally expressed himself somewhat ineptly, we formed the impression that the applicant was sincere in attempting to find words to describe his views clearly. On balance, we found his genuineness in seeking to fully disclose matters that he considered to be relevant to the Tribunal’s assessment, outweighed his language deficits.

Assessing the applicant’s acceptance of accountability for the offence

121. Our assessment of whether the applicant has taken accountability for the Disqualifying Offence, involves an evaluation of a number of aspects which have been made unnecessarily complex in our view because of his inconsistent statements or poorly expressed statements.

122. In his Grounds Document, the applicant stated that although he comprehended his behaviour was unacceptable and admitted to his, he pleaded not guilty. He also said that he “did not fully comprehend the seriousness of the offence”. In our view, this statement appears to refer to his level of understanding at the time of the criminal trial.

123. He also stated in his Grounds Document that there was a complete misunderstanding on his part as to why the victim was in his home, apart from apparently having asked for a lift to her friend’s home. His oral evidence was that she had been to his home on a previous day, asking to borrow his wife’s things and he thought she may have been interested in exploring something sexual with him. In his Grounds, he said that he had “sought consent” which we understand referred to his request for her to wash his back. He said that he did not want to entice her, but made the suggestive comment “as a feeler”.

124. Around five days after his offending conduct, he was confronted by the victim’s older sister and his wife about what had occurred. He had not told his wife about the incident and when confronted, he said he had “stuffed up” and had been feeling sick all weekend about what had happened. The evidence of the victim’s sister at the criminal trial was that the applicant said, when confronted, that if the victim had wanted to have sex with him, he would have said no. In the criminal proceedings, he denied saying that. In the hearing before us, he could not recall having said it, but conceded that he may have said it. The sister’s evidence was also that he said he was “just trying to fuck with her brain”. In both the trial and the Tribunal hearing, he denied making that statement, but said in the trial that he was “just messing around”. In the hearing before us, he said that he had just been “dicking around”. In our view, very little turns on the language used by the applicant at the time. The issue to consider in relation to this evidence is whether he was trying to entice the victim, which may be a cause for concern.

125. Overall, we are of the view that the applicant was confused about whether the victim was interested in something sexual and sought to clarify this, without wanting to engage in a sexual act with her, by asking whether she would wash his back. On balance, we find this stopped short of being considered to demonstrate he was enticing her. Her response clearly confirmed that she did not consent and the exchange went no further.

126. At the time of his arrest on 28 August 1999 (around 6-7 weeks after the Disqualifying Offence took place, the applicant participated in an electronically recorded interview during which he stated that he was advised by a solicitor whom he contacted on an 1800 number to not answer any questions regarding the allegation that he had committed an act of indecency in front of the victim. He said he had been advised to make no statement and to deny any charges.

127. In the hearing before us, the applicant said that this was something that he regretted since the Magistrate in the Local Court, made reference to his exercise of his right to silence and not make a statement. The Magistrate stressed that no adverse inference of guilt arose, but that it was a relevant factor to be weighed in terms of the credibility of evidence since the applicant’s memory of events had not been recorded during his interview with police some six weeks after the offence. This appears to be the only matter relating to the applicant’s statement that there had been a “litany of errors” in connection with the trial. In his oral testimony, he conceded that his wording may not have been clear. He said that he had simply put himself in the hands of a solicitor and he regretted not making a statement at the time, which may have influenced the Magistrate’s assessment of his credibility at the trial. However, we do not regard this as a matter of significance, in our assessment of his risk.

128. In the hearing before us, the applicant was cross-examined on his statement that he had wanted to sort the matter out with the family. We note that, with respect to his own daughter’s sexual assault, charges were not pressed and the applicant stated that he was relieved to know that her mother and friends had supported her through the ordeal. He stated on a number of occasions that he did not want to harm the victim and did not want to cause further stress to her and her family. We accept that his concern for the victim was his primary motive, rather than a failure to take accountability.

Assessing the applicant’s insight into the impact of his offence

129. Another aspect that caused, in our view, undue confusion and complexity concerns the applicant’s statements about victims of sexual abuse and their contribution towards the abuse.

130. In his Written Statement, he said that in the course of preparing for this hearing, he had read, for the first time, the trial transcripts and sentencing orders relating to the Disqualifying Offence, and found this to be confronting. He referred to the Magistrate’s question to him asking how, as a parent of daughters, he would feel if they had been in the position of the victim. He had no recollection of this question having been put to him during the trial and stated that he would most definitely be upset if one of his daughters had been in that situation. He went on to rationalise that he would also be upset with them if they were nearing the age of adulthood and lacked situational awareness.

131. In his oral evidence, he attempted to explain that comment by referring to an analogy of a person wearing expensive jewellery and being robbed, but subsequently withdrew those comments. His evidence was ultimately quite emphatic, that a victim can in no way be said to have contributed to an offence, and said that “one hundred percent”, a child who is abused is not at fault.

Tribunal finding

132. The applicant’s oral evidence before us was that he remained uncertain as to whether he had an erection when the victim was in the bathroom and passed the shaving cream to him. His evidence was also that although he agreed he had acted inappropriately, he didn’t think that allowing the victim to see him in the shower was an act of indecency.

133. In response to a question probing him about his plea of not guilty alongside his admission that his behaviour was unacceptable, the applicant again said he had acted completely inappropriately but he didn’t feel the victim seeing him in the shower was an act of indecency.

134. On the evidence before us, the applicant “to this day” is not able to say with confidence that he had an erection at the time that the victim saw him naked. He has denied that he was sexually motivated to entice her while he showered and we have made our finding. In our view, it would be unjust to expect the applicant to admit to all aspects of the Disqualifying Offence simply to seek to demonstrate remorse, reflection or insight for the purpose of obtaining a working with children check clearance.

132. However, he has conceded that his behaviour was wrong, inappropriate and harmful to the victim. He has acknowledged that it is improper to see a person naked, and accepted that the victim was harmed. He has accepted that, certainly from the perspective of the victim, his conduct was an act of indecency. In closing submissions, he conceded there was no justification for what he did.

133. We have concluded that, with the passage of time, he has understood from the victim’s perspective the harm that he caused and that he would act protectively towards a child in future. We therefore conclude, on balance, that he has accepted full responsibility for his offending conduct and has insight into his conduct that is considered to be an act of indecency, and the impact it had upon the victim.

Has the applicant demonstrated remorse?

137. We accept that the applicant is remorseful about his error. He repeatedly acknowledged that he had always accepted that he did the wrong thing.

Overall evaluation of risk

138. On the basis of the overall evidence before us, we find that the applicant has displaced the presumption in s 28(7) of the Act, and this Tribunal is positively satisfied that he does not pose a risk to the safety of children. In summary, our reasons are:

1. the significant passage of time (25 years) since the Disqualifying Offence;

2. that the applicant has accepted responsibility for his offending conduct;

3. that the applicant has demonstrated insight into the effect of his conduct on the victim;

4. that there are no other complaints, charges or convictions for offences of a similar sexual nature in the period since the Disqualifying Offence;

5. that the absence of an expert opinion on the applicant’s risk profile and likelihood of repeating his offending conduct is not determinative of the assessment of risk and is not fatal to his application for review; and

6. that there are protective factors as identified in our reasoning in support of the applicant’s contention that he is not a risk and there is no likelihood that he will repeat his offending conduct.

139. Accordingly, we propose to make the enabling order requested.

Further considerations: “Reasonable person” and “public interest” tests

140. Before exercising the discretion to make an order requiring the respondent to grant the applicant a clearance, we are obliged to consider the evidence under s 30(1A) of the Act (“reasonable person” and “public interest” tests to be satisfied).

“Reasonable person” test

141. Under s 30(1A)(a) of the Act, before making an order which has the effect of enabling a person to work with children in accordance with that Act, the Tribunal must consider and be satisfied that a reasonable person would permit their child to have direct, unsupervised contact with the applicant in the course of any child-related work.

142. A reasonable person would be concerned by the Disqualifying Offence since it was an offence of a sexual nature and the victim was vulnerable due to being almost half the age of the applicant, in his home and reliant upon him for transport to her friend’s house.

143. However, the Disqualifying Offence is counter-balanced by a number of factors including:

1. that in the past 25 years the applicant has not been the subject of any complaints, charges or convictions of a sexual nature or involving a child;

2. that the applicant is not known to have engaged in any other concerning behaviour towards children.

144. On the evidence before us, we are satisfied under s 30(1A)(a) of the Act that a reasonable person would allow his or her child to have direct, unsupervised contact with the applicant while he is engaged in child-related work.

“Public interest” test

145. Under s 30(1A)(b) of the Act, before making an order which has the effect of enabling a person to work with children in accordance with that Act, the Tribunal must also consider whether it is in the public interest for the applicant to be given a clearance.

146. Consistent with the decision in ZZ, we recognise the relevance and importance of the applicant’s right to work in his chosen area of employment where he can apply the skills and experience acquired during his work as a teacher (in both martial arts and online teaching). We take this into consideration since his desire to undertake work of that nature will also deliver a broader benefit for the community.

147. The Tribunal considers that in the absence of any risk to the safety of children, there are no clear public interest considerations to suggest that it is not in the public interest for the applicant to be granted a clearance.

148. We are thus satisfied under s 30(1A)(b)that it is in the public interest to make the enabling order and for the respondent to issue the applicant with a clearance.

ORDERS

149. Accordingly, we make the following orders:

1. Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of commit act of indecency with a person aged 16 years or over contrary to s 61N(2) of the Crimes Act 1900 of which he was convicted on 11 May 2000.

2. Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal further orders the Children’s Guardian to grant the applicant a clearance forthwith.

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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: 27 February 2025