GQK v Children's Guardian

[2025] NSWCATAD 168

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GQK v Children’s Guardian [2025] NSWCATAD 168

Hearing dates:

2 May 2025

Date of orders:

15 July 2025

Decision date:

15 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member
K Stubbs, General Member

Decision:

The application for an enabling order under s 28 of the Child Protection Act (Working with Children) Act 2012 (NSW) is refused.

Catchwords:

ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — refusal by Children’s Guardian in relation to a disqualified person — applicant found guilty of sexual touching without consent — enabling order application under section 28 — whether a real and appreciable risk is posed by the applicant to the safety of children

Legislation Cited:

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

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

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

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GQK (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (self-represented)

Counsel:
J Curtin (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00354824

Publication restriction:

With the exception 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.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. On 20 August 2024, the applicant, who has been given the pseudonym GQK, applied for a working with children check clearance pursuant to the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), nominating “clubs or other bodies providing services to children” as the relevant child-related employment sector. The applicant was notified that his application was refused by notice of decision dated 28 August 2024.

2. The basis for refusal was that the applicant is a “disqualified person” under the WWC Act because he was found guilty on 25 November 2020 of an offence identified as an “disqualifying offence” for the purposes of the WWC Act.

3. The applicant applied to the Tribunal review for the decision to refuse his application for a clearance on the grounds, amongst other things, that he was not dangerous to children, the decision was unjust, and the decision affects his livelihood and future employment prospects. He seeks an enabling order and an order to be granted a clearance under ss 28(1) and (6) of the WWC Act. There is no dispute that the applicant is eligible to make this application, and that the Tribunal has jurisdiction to deal with this matter under the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

4. The applicant represented himself and the respondent was represented by Counsel. The applicant gave evidence at the hearing and was cross examined by counsel for the respondent. In addition to references supporting his application, the applicant relied on a report from clinical psychologist and neuropsychologist, Mr Richard McBride, dated 5 December 2024. Mr McBride gave evidence at the hearing.

5. We have decided to refuse the application for an enabling order under s 28 of the WWC Act. These are our reasons.

Background

6. The applicant is a 48-year-old man who is married with young children. He grew up in New Zealand and moved to Australia in 2002 or 2003.

7. In February 2020 he was arrested and charged with the offence of sexually touching another person without consent. At the time of the incident, the applicant owned and managed a cafe located in the Sydney CBD. He employed the victim, who was a 22-year-old international student working at the cafe. She worked over a period of two weeks and alleges that during this period, the applicant would occasionally touch her on the shoulders, hip or bottom as he walked past her. The incident that was the subject of the charge occurred on 28 January 2020. The victim commenced work at the cafe early in the morning and, as part of restocking the cafe, she was required to access the cafe loft to retrieve stored items. This involved using a ladder. The victim climbed the ladder with the applicant standing behind her. She alleged, and this is part of the police fact sheet referred to below, that the applicant used both hands to pull her back towards him by her hips. She could feel the applicant's penis touching her on the backside and as she began to climb the ladder, the applicant used both hands to touch her on her bottom. She handed the applicant a number of boxes before climbing down the ladder and the applicant again put his hands on the victim’s bottom as she climbed down the ladder.

8. The victim was very upset by this incident and later that evening sent the applicant a text message telling him she could not work with him again because of his inappropriate behaviour. The victim complained to police, which resulted in the charges. The matter proceeded to hearing on 28 September 2020. Both the applicant and the victim gave evidence and both were cross examined. The applicant accepted that he had touched the victim when she was on the ladder but denied this was sexual touching and gave evidence that this was solely for the purpose of ensuring that the victim was able to safely ascend and descend the ladder. During the hearing, the prosecution tendered, without objection, CCTV footage of the victim at the Town Hall and Redfern train stations taken immediately after her shift on the evening of 28 January 2020. The Magistrate accepted the victim’s evidence and found the offence proven beyond reasonable doubt. On 25 November 2020, the applicant was convicted of the offence of sexually touching another person without consent, contrary to s 61KC of the Crimes Act 1900 (NSW). He was sentence to a community corrections order for 18 months.

9. In addition to the disqualifying offence, the respondent provided material to the Tribunal about further allegations made against the applicant shortly after this incident. The evidence about this complaint is set out below. The complainant refused to make a statement, and the applicant was not charged as a result of these allegations.

10. The applicant made an application for a working with children check clearance on 20 August 2024. The application was refused on the basis of the applicant’s conviction for a disqualifying offence.

Statutory framework

11. The WWC Act establishes a statutory scheme to protect children by not permitting certain person to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances. This is the sole object of the WWC Act as set out in s 3. Section 4 provides that the safety, welfare and well-being of children, and in particular, protecting children from child abuse, is the paramount consideration in the operation of the WWC Act.

12. Section 5B of the WWC Act provides that a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

13. The term child-related work has the meaning in ss 6 and 7 and involves direct contact by the worker with a child or children where that contact is a usual part of and more than incidental to the work. Section 8 provides that a worker must not engage in child-related work unless the worker holds a working with children check clearance of a class applicable to the work. Section 12 provides for two classes of working with children check clearances, namely volunteer clearances, authorising workers to engage in unpaid child-related work, and non-volunteer clearances, authorising workers to engage in paid and unpaid child-related work.

14. Section 13 provides that a person may apply to the respondent for a working with children check clearance. The application must specify the class of clearance requested. A person who is refused a working with children check clearance or whose clearance is cancelled is not entitled to make a further application for clearance until five years after the date notice of the refusal or cancellation was given to the person or unless a further early application is permitted: s 13A of the WWC Act.

15. Section 18 of the WWC Act sets out how the determination of applications for clearances must be made and provides as follows:

18 Determination of applications for clearances

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

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

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

(2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3. offences

16. Schedule 2, relevantly cl (1), identifies the offences that are specified to be “disqualifying offences” for the purposes of s 18(1) of the WWC Act. Section 61KC is a disqualifying offence under cl 1(e), Sch 2.

17. Section 61KC provides as follows:

61KC Sexual touching

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

(a) sexually touches the complainant, or

(b) incites the complainant to sexually touch the accused person, or

(c) incites a third person to sexually touch the complainant, or

(d) incites the complainant to sexually touch a third person,

is guilty of an offence.

18. The maximum term of imprisonment for contravention of s 61KC is 5 years imprisonment.

19. There is no discretion to grant a clearance to a disqualified person and the respondent must refuse the clearance. Despite this, if a person wishes to obtain a working with children check clearance, they must first apply for an enabling order from the Tribunal under s 28 of the WWC Act. Section 28 provides:

28 Orders relating to disqualified and ineligible persons

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

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

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

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

(b) the person’s clearance has been cancelled under section 23,

because the person is a disqualified person.

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

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

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

(6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children’s Guardian in accordance with the Tribunal’s order.

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

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

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

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

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

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

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

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

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

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

(g) the person's present age,

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

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

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

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

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

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

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

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

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

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

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

23. If the applicant does not displace the presumption and satisfy the Tribunal that he does not pose a risk, it is unnecessary to consider the supplementary tests.

Outline of evidence

24. The respondent provided several bundles of documents containing details about the charges and criminal brief leading to the applicant’s conviction. The respondent included the transcript of the hearing and the judgement and sentencing remarks made by the Magistrate on 25 November 2020. The Magistrate made the following remarks in sentencing the applicant:

The defendant has been found guilty following hearing [of] an offence of sexual touching without consent. I note the maximum penalty of five years. The circumstances of the touching was contact with the complainant in the course of climbing a ladder. I note the facts have been read out and I will not duplicate them here. I accept that the matters which make the [offence] serious is the power imbalance before between the defendant as the employer and owner of the cafe and the complainant as an employee.

This conduct in the workplace which is not acceptable and workers are entitled to go about their business without being subjected to conduct of a sexual nature. I accept the nature of the touching itself is of a short duration and I accept the submission that the gravity was at a lower end in respect of the touching itself. Tempered by the matters that enhance the criminality, being the power imbalance. I take into account the otherwise good character and no criminal record.

As the matter proceeded to hearing there is no consideration of a discount or plea. In respective remorse, does not fall to be considered. I take into account the length of time that the defendant has been on bail and that there has not been any repetition of offending and the subjective circumstances as outlined by his lawyer.

Balancing those matters you are placed on a community corrections order to be of good behaviour for the next 18 months and to appear at court if called upon to do so.

25. In finding that the applicant had committed the offence beyond reasonable doubt, the Magistrate considered the evidence of both the victim and the applicant and rejected the applicant’s account that he was simply attempting to support the victim on the ladder as an occupational health and safety issue.

26. Included in the evidence provided by the respondent was a video of the victim at the Town Hall and Redfern train stations showing that she was very upset while waiting for the train at the Town Hall and leaving the train station at Redfern.

27. The other documents provided by the respondent reveal that the applicant has not been charged or convicted of any other criminal offences. However, as already noted, there is evidence of a further complaint made against the applicant, the details of which were included in the prosecution brief. In summary, one of the officers who was investigating the case became aware of a similar case involving the applicant, also involving an international student. He annexed to his statement email correspondence between him and the complainant, who by this stage had returned to her home country. The complainant alleged that she went go into the cafe to apply for work just before closing. The applicant asked her to wait until the café closed. The applicant said he wanted to show her how to make a coffee which she tried to do and during this process he touched her waist and rubbed his lower body against her buttocks. The complainant said that she ignored this initially, but the applicant did it again and she said, “what are you doing?”, after which he stopped. After making the coffee and speaking about the job, she left the cafe to go home and he kissed her on the lips. She was so shocked that she swore at him. He tried to take off her clothes and she resisted him.

28. The complainant had previously left her resume with the applicant and a few weeks later he texted her on WhatsApp using the number on the resume. The complainant made complaint to the police. She later returned to her country of origin but was contacted by a police officer by email in April 2020 about her complaint. The police officer stated that he wanted to take her statement from her to take action against the applicant. The complainant responded that she did not want to get involved and she did not want to give evidence at court. She stated that she had deleted the messages. She had been sick after the matter went to the doctor got some counselling and now she was fine. The complainant did not want to pursue any claim against the applicant.

29. The applicant provided a statement to the Tribunal in support of his application to the effect that:

1. He accepted that he had acted poorly leading to criminal charges and a complaint five years ago. He accepted that he behaved inappropriately, and this caused distress to two people, however, the behaviour of five years ago does not represent his true character or values. The subsequent court case conviction and sentence affected him deeply and left him a changed person. The conviction weighs heavily on him.

2. Around 2017 and 2018 he experienced ongoing relationship difficulties and due to the combined stress in working and running his own business and the birth of his third child, this led to a poor mental state. The applicant believes that his reckless actions of 2020 may have been related to this. He is now in a better mental state.

3. The wrongdoing that he is guilty of involved adults and not children and this is significant as there are major differences between children and adults. Children do not possess a developed a capacity to make good choices for themselves and need to be protected. He has no attraction to or sexual interest in children and no desire to hurt children or any other person. When he is around children he is concerned for their safety and happiness.

4. One of the reasons that he wants a working with children check clearance is that he wants to work as a tennis coach. He has been working as a tennis coach, which he finds rewarding. A large portion of the demographic of his clients are young women. He has continued to coach young woman for more than two years without any negative incident.

5. The applicant submits that he is not a danger to children. He is a father of three happy healthy and successful children, aged 14, 10 and 7. His children are doing well. His older son attends a selective school and is an accomplished musician and his daughter is the captain of her class. The happiness and thriving of his children is the most potent motivation and purpose in his life.

6. The applicant has around 18 months experience in working with children as a tennis coach and he has always coached groups of kids from five years to late teens. His employers have observed his work and provided him with glowing references. After his conviction come ahead buys his employees that he was unavailable to coach children and has not done so.

7. At the age of almost 49 years old he is mature and complex adult and has learned and continues to learn from experience.

30. In written submissions provided the Tribunal proud of the hearing, the applicant described the offence is an offence that involved him “touching a staff member in a way that she was not comfortable with, in the course of assisting her while climbing a ladder”.

31. The applicant also provided references from two employers who employed him as a tennis coach. Both references, one dated December 2023 and the other undated, were in support of the applicant’s application for Australian citizenship. Neither referred to his conviction but rather to his work as a coach.

32. The applicant provided a statutory declaration dated 20 December 2023 that was provided for his application for Australian citizenship. In the statutory declaration, the applicant notes that he was convicted of sexual touching of another person without consent on 25 November 2020. He noted that he had completed his community correction order on 24 May 2022 and that it had been almost four years since his offence. In his statutory declaration, the applicant stated as follows:

The circumstances was thus: I had a new employee at my cafe. She worked just a few shifts. As part of her training I was showing her a task involving climbing at ladder to an attic storage area. I stood at the foot of the ladder holding it steady. As she climbed onto the ladder to ascend I placed my hands on her body (specifically her hips/bottom area). This action was not meant to be sexual it was meant to be supportive but it was not necessary for safety. She did not react in any way at the time and completed the task. Later that day I received a text message in which she said she did not wish to work anymore as she found my touching inappropriate (in the court case she gave the view that I grabbed her bottom). A few days later I was arrested.

33. In his evidence at the hearing under cross examination, the applicant gave the following evidence.

34. He had worked in the cafe five days a week around 40 hours a week and this had been his main source of income. He recently wound down the cafe 2 days ago and it was now closed. He also worked as a tennis coach 25 hours a week across seven days. Now that he had closed the cafe, his sole source of income was as a tennis coach. His clientele consisted entirely of adults. He was hoping to increase his hours by being able to coach children. He also thinks that he may need a working with children check clearance in working with adults.

35. The applicant said that when he was arrested in February 2020 by the police he did not know why he had been arrested.

36. When questioned about his description of the offence in his written submissions, the applicant was asked whether he accepted that what he had done was “sexual touching”. The respondent said that he was convicted of this offence and so he must accept that this was the nature of the offence. He knew the former staff member was uncomfortable and so this was included in his submissions, his statutory declaration and in his statement and submissions. The applicant was taken to the fact sheets and the transcript where the victim gave evidence that the applicant pulled her back and that his penis was touching her bottom and her lower back. The applicant acknowledged that he did not include those details in his statement to the Tribunal or in his statutory declaration to support his application for Australian citizenship. He also acknowledged that he did not include information that he had denied the allegations made by the victim and that he continues to deny those allegations. The applicant said that the detail provided was a high-level summary of the offence. He denied that he deliberately omitted anything when providing these particulars. When asked why he did not mention the detail of the victim’s allegations about him pulling her so that his penis touched her low back and buttocks, the applicant said that he did not include this because it did not happen.

37. The applicant said that he accepted the Magistrate found him guilty of the offences alleged. He does not dispute the fact that he was found guilty but says that the guilty finding made by the Magistrate deviates from what the applicant himself accepts happened. When asked if he continued to deny the facts as found by the Magistrate, although accepted that he touched the victim on the bottom, the applicant responded that this was the case.

38. When asked about whether he knew of the other complaint that had been raised during the criminal trial, the applicant said that he had only become aware of the detail of this in the last few days. He said that he was told that another complaint had been made but he was not given the details and was not aware of this until he received the respondent’s bundle of evidence in April 2025. He said that he could recall meeting the complainant. He first saw her when she was passing by the cafe and looked at him with what he believed was “a strong look in her eyes”. She came back later. He believed this second complaint was consensual, that the complainant got caught up in the moment and then once the police came involved she realised it was more serious. He did not accept the account set out in the email correspondence with the police. He said that the complainant kissed him back and he messaged her after the incident because he liked her and wanted to have further contact with her. She did not reply. She did not say “what are you?”. He realised that she did not want to continue but did not agree she was distressed. The applicant said this was a difference in understanding.

39. It was noted that this incident happened short time after the other incident with his staff member and a day before he was arrested. The applicant did not agree that the two incidents were similar. He said that the incident with the complainant was not in a work context where the complainant was vulnerable. It was not a job interview as he did not want to employ anybody at that point of time. The applicant was asked whether he had misread the situation with both the victim and the complainant, who were at least 20 years younger than him, and he agreed that this may have been the case.

40. The applicant provided the Tribunal with a report from Richard McBride, clinical psychologists, and neuropsychologist dated 5 December 2024. It should be noted that the report did not include a list of the documents examined by Mr McBride and did not include details of his professional experience and qualifications.

41. Mr McBride reported that he assessed the applicant on 25 November and 2 December 2024. He was contacted directly by the applicant who told him this application was to contest or appeal the denial of his working with children check clearance due to a criminal conviction that occurred in 2020.

42. Mr McBride’s report included the following:

GQK was found guilty of sexual touching another person without consent on 25 November 2020. He was found guilty by a magistrate at the Downing Centre at that time. The date of offence was 28 January 2020. GQK stated that he held the hips and bottom area of a new employee at his cafe while she climbed a ladder to an attic storage area. He did not contest that he touched her, but he stated he did not think it was intended to be sexual. However, the employee, while not reacting at the time, sent a message (SMS) to GQK that evening, stating that she did not want to continue her employment due to inappropriate touching. GQK reportedly replied with an SMS apologising and offering to discuss the matter further. However, this did not happen, and he stated that a few days later he was arrested. GQK was ordered to serve a community correction order from 25 November 2020 until 24 May 2022. He reported that he served this order diligently, and he stated that he was very careful to ensure that he maintained strong boundaries, law-abiding behaviour, and he reported that this was a difficult period in his life.

Regarding the offence and the conviction, GQK was clear that he did touch the plaintiff and that it caused her distress. Accordingly, he expressed regret and remorse, and it was clear that he accepted responsibility for that distress, even though he stated that he did not believe the touch was motivated by sexual intention. He stated that he admitted to touching the employee, and he noted that there were some minor discrepancies between his report and the plaintiffs report. GQK provided me with a copy of the NSW Police fact sheet. He also provided me with a copy of his statutory declaration that described his offence in the context of his application for citizenship, which occurred shortly after the commission of the offence. GQK stated that he had no previous arrests, charges or convictions for criminal offences or sexual offences. He stated that the employee he was found guilty of touching was in her early 20s, and he believed that she was 22 years old at the time of the offence. Mr GQK stated, "There's no doubt that I upset someone, and I am very sorry for that".

43. Mr McBride set out his assessment measures as follows:

The literature suggests that clinical assessment of risk of sex offence is improved when augmented with structured assessment measures that assess both static risk factors and dynamic risk factors. The Static-99r is probably the most established static risk measure. The research literature concludes that the performance of assessment is improved when the Static-99R measure is augmented with a dynamic risk measure such as the Sex Offender Treatment Intervention and Progress Scale (SOTIPS) or the Violence Risk Scale Sexual Offence version (VRS-SO) which are measures designed to assess the risk of sexual recidivism in forensic populations and designed to measure the change in level of risk before and after treatment. For the current assessment, the Static-99r was accompanied by the SOTIPS measure. This was deemed appropriate as GQK was not living in a forensic population, although he had served a conviction in the community for a sexual offence.

44. He assessed the applicant at a low risk of recidivism, noting:

The variables that were influential in determining GQK's low risk included absence of prior sexual offences, absence of prior non-sexual criminal offences, his age at first sexual offence, having only one female victim, having low levels of sexual deviance, having low rule-breaking behaviour, low levels of impulsivity, and stable social stability and stable social factors and supports in place. Additionally, his high level of responsibility and accountability was a favourable factor, as was his sexual attitudes and his low level of defensiveness.

45. Mr McBride concluded:

GQK is a 48-year-old man who lives with his partner of approximately 15 years and their three children. He was convicted of sexual touching of an adult without consent in 2020. I understand from GQK, and from the documentation that he provided me, that he admitted to touching that was unnecessary and he indicated that he accepts responsibility for this and is regretful and remorseful because he acknowledges it caused the young woman that he touched distress. He served a community correction order and, based on my discussions with him, is much more conscious of physical boundaries and sexual boundaries since that conviction. It caused him a good deal of subjective distress. I note that the victim in this matter was a woman of adult age at the time of commission of the offence. There was no evidence that I could discern that GQK has ever demonstrated any deviant boundaries regarding contact with children. GQK is well aware from parenting his own children of the sanctity of those boundaries. He presented as chastened in the wake of his criminal conviction. I did not detect evidence of sexual deviancy or unusual levels of fantasizing when I assessed GQK. He had few risk factors for recidivism, with possibly the only mild risk factor being emotional management issues related to periods of dips in mood. However, GQK reported that these have been well managed for the last two years and his mood was not depressed on assessment with me. On more actuarial assessment of both static risk factors and dynamic risk factors for recidivism, GQK scored in the lowest ranges. Similarly, his needs regarding risk of sexual recidivism were also in the lowest range. GQK was not defensive and there was no impression of negative or positive impression management on the current assessment. Accordingly, I would judge or estimate GQK risk of sexual offending to be in the very low range. Additionally, I did not find any evidence of transgressive or inappropriate behaviour or thoughts regarding children either currently or historically. Overall, I was satisfied that GQK presents very low risk of re-offending and consequently I would support his application to appeal the declinature of his Working with Children Check.

46. Mr McBride gave evidence. His under-graduate qualifications were conferred from Sydney University and his post graduate degree was conferred from the University of NSW in 2000. He initially undertook research for the Black Dog Institute and then worked for seven years as a clinical psychologist working with young people. He worked at the Brain and Mind Centre from 2007 to 2008 and from 2008 to date he has worked in private practice as a clinical psychologist working with people in rehabilitation. His private practice is a mixture of ongoing and assessment work and more recently he has been preparing written reports about sentencing in relation to neurodevelopmental delay. He has not previously undertaken work in relation to sexual offending and reviewed the relevant literature for the purpose of preparing the report. Mr McBride said that this was the first working with children check clearance report he had undertaken.

47. Mr McBride first met with the applicant on 25th November 2024 for about 2 and a half hours. He was provided with fact sheets from the brief and citizenship information. He was given a summary document from the applicant that he had pleaded guilty. He read these documents while the applicant was in his office. He did not keep a copy of the documents. Mr McBride was asked about the impact of an offender pleading guilty. He said that a person who pleads guilty generally would be considered to be a lower risk of recidivism. He did not have the transcript of the decision made by the Magistrate and cannot recall whether he saw the decision of the respondent. Mr McBride said that the second assessment was approximately an hour in duration. He was asked whether his assessment was influenced by the veracity of answers given by the interview. He responded that one of the important issues was the applicant’s current residential stability.

48. Mr McBride stated that the applicant provided him with an extract from the submissions of the respondent noting that there was a further complainant. He had a discussion with the applicant about this. Mr McBride said that the applicant told him that the second incident was probably inappropriate. Mr McBride was asked whether the existence of this second incident would impact his report. He said that it may have as he would have asked the applicant further questions about this and about his state of mind at the time. Mr McBride noted that the applicant’s offending had been at a time of work and personal stress. He also confirmed in cross examination that his assessment was based on the risk of the applicant re-offending at a criminal level. Mr McBride said that there were “small discrepancies” with what he was told by the applicant and the police factsheet. He was asked about his conclusion that the applicant had remorse and insight in circumstances where he continued to deny what happened. Mr McBride said that remorse is a complicated issue, but he had the impression that the applicant had spent some time reflecting on his actions and he was remorseful that he had been found guilty of an offence and that had caused distress to the victim.

49. Mr McBride said that he would support the applicant’s application for a working with children check clearance. There was evidence that he had previously worked with children and had not offended, as far as he was aware.

Submissions

50. The applicant submits that an order should be made. He submits that he is a person of good character with stable employment, history and family life. He has experience in working with children and he has no other criminal record. He has worked in hospitality more than two decades and had countless positive interactions with customers. He has had several years’ experience as a tennis coach, including working with children from July 2022 to March 2024 without any allegations being made against him. He has recently become an Australian citizen. Because of his conviction he had to undergo additional vetting but has been awarded citizenship, which demonstrates that he is of good character. The conviction for the disqualifying offence has a large impact on him and imposes significant penalties because it effects his ability to work as a tennis coach. The applicant considers that the disqualification as unfair. It impacts his children because he is unable to volunteer on school camps or excursions.

51. The offence that resulted in his conviction is contained in the court record. This offence involves him touching a staff member in a way that she was uncomfortable with in the course of him assisting her while climbing a ladder. The applicant accepts that it was the case and that it was his own wrongdoing that led to his conviction. He has modified his behaviour such that it will not happen again. The applicant also submits that his action led to severe personal consequences. The applicant notes that almost five years have passed since the incident and this has provided him with the opportunity to reflect on this and to adjust his behaviour. The applicant submits that the conviction makes many things that he wants to do in terms of employment and family life more difficult and complicated. For instance, applying for jobs and participating in school activities. This conviction and its aftermath have provided a strong stimulus to avoid the behaviour that led to it. The applicant relies on the evidence from Mr McBride in support of his application.

50. The respondent submits that in an application for an enabling order by a disqualified person, the Tribunal can only make the enabling order if positively satisfied that the applicant does not pose a risk to the safety of children. In making this determination, the Tribunal must have regard to the mandatory considerations set out in s 30(1). If satisfied that the applicant does not pose a risk, the Tribunal must further be satisfied about the supplementary tests, namely the reasonable person test, which is an objective test, and the public interest test, which requires the Tribunal, before making an order enabling the applicant to work with children, to find that it is in the public interest to make such an order.

51. The respondent further submits that, while the applicant accepts he has been found guilty of the disqualifying offence, he contested the allegations at the trial and continues to deny the more serious aspects of the findings, namely the nature of the sexual touching. There are further allegations that have been made against the applicant kissing another international student. The allegations made in respect of the disqualifying offence and the allegations made by the second complainant a short time after the first incident are similar. Both instances took place at his cafe in circumstances where there was a power imbalance between the victims; one was an employee and one was a prospective employee. Both victims were young women in their early 20s and on visas and in both instances the victims allege that they have experienced sexual and psychological harm. The applicant denies the seriousness of the second complaint and states that it was consensual.

52. The respondent submits that these matters are sufficient to establish that the applicant poses real and appreciable risk to the safety of children. The respondent further submits that the weight of the evidence of Mr McBride is limited for a number of reasons. The evidence of Mr McBride was about the risk of offending at a criminal level, not risk per se. The assessment is based on the self-reporting of the applicant and Mr McBride was not given all the information to enable him to form a considered view. For instance, he had not been provided with the transcript of the decision made by the Magistrate. Nor was he provided with the details of these second allegations before he completed his report. Mr McBride agreed that this may have led to further inquiries. Relevantly, Mr McBride accepted that the assessment of risk may have been impacted if he had known about the second allegations at the time that he completed his report and undertook the assessment.

53. The respondent contends that the references are of limited value as the authors were apparently not aware of the applicant’s conviction or the details relating to the conviction. It is relevant that the applicant has not sought treatment. The respondent submits that a significant matter relevant to the assessment of risk is the remorse and insight of the person who has committed the offence. The applicant has limited insight into the seriousness of the offence. While he says he accepts responsibility for the distress, he still maintains today that the offence was confined to touching the bottom of the victim. In relation to the second incident, the applicant seeks to put a different complexion on the interaction which he characterises as a “romantic” interaction. It should be noted that the applicant did not deny the substance of the allegations but simply asserts that the contact between he and the international student was consensual. This tends to suggest the applicant’s behaviour was impulsive

54. In summary, the respondent submits that the applicant has not displaced the onus to establish to the Tribunal that he does not pose a real and appreciable risk to the safety of children. As such, the Tribunal cannot be satisfied on the evidence that the applicant does not pose a risk to the safety of children. If the presumption that the applicant poses a risk has not been rebutted, there is no need to consider the supplementary tests.

Consideration – should an enabling order be made?

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

57. In BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523, Beech- Jones J observed that s 28 confers two relevant powers on the Tribunal, namely a power to make an enabling order in respect of a disqualified person and a power to order the respondent to grant a person clearance under s 28(6). His Honour states that the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children.

58. In making the assessment of risk, Beech-Jones J discussed the risks identified in s 5B as being “real and appreciable risks” and refers to the High Court decision in M v M [1988] HCA 68; (1988) 166 CLR 69, where issues of risk in relation to custody disputes for children was being considered. In that case, the High Court was considering the onus of proof where allegation of sexual abuse had been made and discussed the standard of proof in relation to these allegations referring to its earlier decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. In Briginshaw, the High Court considered the standard of proof required to establish what was, at that time, the serious allegation of adultery. The High Court rejected the notion that the criminal standard applied, although accepted that any Tribunal of fact should act “with much care and caution” before finding that a serious allegation is established. It is now well-established that when the law requires the proof of a serious allegation which has significant consequences, such as an allegation of sexual abuse, the Tribunal must feel an actual persuasion of its occurrence or existence before making such a finding, namely there should be “reasonable satisfaction” about the finding of fact. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

59. In BKE, Beech-Jones J observed that the principles in Briginshaw were “enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence” but nonetheless concludes that the Tribunal would be “well advised to have regard to the these principles if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so” (at 29). His Honour states at [33] as follows:

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

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

57.   ……The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.

58.   It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

61. Having regard to these authorities, we have assessed the evidence before us at the time of the decision to form a view about whether the applicant poses a real and appreciable risk to the safety of children and whether the presumption of risk has been rebutted.

62. In determining this issue, the Tribunal must have regard to the factors in s 30(1). We set out our consideration of those matters below.

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

63. Section 30(1(a) provides that the Tribunal should have regard to the seriousness of the offences with respect to which the person is disqualified or any among other matters that caused refusal of a clearance or imposition of an interim bar. In this case, the applicant has not been refused on the basis of the other allegations made but solely on the basis that he is a disqualified person. Section 30(1)(a) focusses on the offences for which the person was disqualified. We therefore address this consideration by reference to the disqualifying offence, namely the offence under s 61KC of the Crimes Act, sexual touching without consent. The second complaint is considered under s 30(1)(b).

64. The offence is objectively serious, as acknowledged by the Magistrate in the sentencing remarks and in the maximum sentence of 5 years. However, as also acknowledged by the Magistrate, the gravity of the touching was it the lower end of seriousness. The Magistrate also took into account the applicant's otherwise good character and the fact that he had no prior record. Despite this, the Magistrate observed that the offence was serious because of the power and age imbalance between the applicant as employer and owner of the cafe and the complainant as an employee. Further, the victim was a young woman on a visa. She was vulnerable and even though she was an adult, she was barely so and was 22 years old at the time of the incident. The video provided by the respondent shows the victim to be very distressed after the incident. While the applicant was not given a custodial sentence, he was given an 18-month community correction order, which is significant.

65. This is a matter that tends to weigh in favour of a finding that the applicant poses a real and appreciable risk to the safety of children. While the disqualifying offence does not involve an offence against a child, the offence is of a sexual nature against a young vulnerable adult.

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

66. The applicant submits that the disqualifying offence is over five years ago, and he has not been convicted of any other criminal conduct since this time. We accept this. However, it is relevant to consider the second complaint made within weeks of the first incident.

67. This complaint is more serious than the conduct which is the subject of the disqualifying offence.

68. We accept that the applicant has not been convicted or even charged in respect of this conduct. However, we also note that the complainant initially took steps to formalise her complaint. She went as far as to report the matter to the police and to send detailed email correspondence about the incident to the police officer prosecuting the first complaint.

69. The applicant does not deny the incident but rather states that he believes it was consensual. He denies that the complainant was applying for a job at the café, although it is difficult to understand why the complainant would be bring her resume to the café and why this would have been left with him if this was not the case. There is no dispute that the applicant used the resume to obtain the complainant’s contact details. The applicant accepts that the complainant did not wish to proceed with the “romantic interaction” and his explanation is that she realised it may have gone too far. Despite this, he contacted her after she left the cafe using the contact details in the resume.

70. The applicant's evidence about this is not persuasive and is at odds with other evidence that suggests his advances were unwanted. The complainant did report the matter to the police and even though she decided not to pursue the complaint, this this does not, of itself, lead to the inference that it was unsubstantiated or an overreaction. The applicant’s evidence about this incident showed little insight into the impact that this may have had on a young international student, in a foreign country, who is potentially applying for employment.

71. In brief, we accept that the applicant otherwise appears to have a good criminal record and there is no evidence that other similar claims have been made against him. We accept that he has worked as a coach with children for a number of years and there have been no complaints may evidence his otherwise good conduct since the previous offences occurred. However, the fact that complaints have not been made against him in the period is not evidence that he has not offended. Child sexual abuse, particularly involving teenage girls and young female adults, may go undetected.

72. The submission of the respondent is that the disqualifying offence and the second complaint are similar in nature and demonstrate a pattern of behaviour by the applicant. We accept this submission. However, we also accept, in the applicant’s favour, that this was over five years ago.

73. The main issue of concern, which is referred to in relation to in one of the other factors, is the vulnerability of the victims and the applicant's apparent lack of insight into the seriousness of his conduct and the impact on the victim and complainant.

74. On balance, the length of time since the offence and the compliant and the absence of evidence about further misconduct tends to weigh in the applicant’s favour in rebutting the presumption.

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

75. The applicant was about 43 years old at the time the disqualifying offence occurred. He is now nearly 49 years old. This is not a case where the applicant was young at the time of the offence and his age and apparent maturity at the time compound the seriousness of the offending. His current age is not a factor that reduces the risk to the safety of children. The applicant is active and there is no suggestion he is infirm or incapable of posing a risk to the safety of children.

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

76. The victim was a 22-year-old international student who was living away from her country of origin. She was employed by the applicant. As observed by the Magistrate, this relationship created a power imbalance. Furthermore, there was a substantial gap in their ages. There was a similar situation in relation to the second complainant. These are significant considerations that tend to heighten concerns about risk.

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

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

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

78. The Tribunal has been provided with a report from Mr McBride to the effect that he considered there was a low risk the applicant would reoffend. Against this, we accept the submission of the respondent that this report is of limited assistance because the opinion is based on Mr McBride’s apparent acceptance of the applicant’s denial about the more serious conduct alleged, it is based on a risk assessment of criminal offending and the assessment did not take into account the conduct alleged by the second complainant. It is also significant that Mr McBride did not have experience in making risk assessments in circumstances such as this.

79. Mr McBride gave significant weight to the fact that there was no evidence the applicant had offended against children, appeared to be remorseful and had a stable home environment, with a wife and three children. He assessed the applicant over two sessions totalling three and a half hours. The applicant did not seek treatment after the offence, despite telling Mr McBride (included in his statement) that work stress and other personal stresses in his relationship at the time may have been influenced his poor conduct. The applicant states that he does not believe that these factors are now present, his work and personal life is more balanced. He is mature and has learned from his previous conduct. These are matters he discussed with Mr McBride. However, it is not apparent from Mr McBride’s evidence that these issues were tested during the assessment. Mr McBride relied on the statements made to him by the applicant. We also note that Mr McBride's opinion that the applicant is remorseful is somewhat inconsistent with the written and oral evidence that the applicant has given to the Tribunal. In our view, the evidence of the applicant reveals that his remorse and insight are qualified by a lack of acceptance, or meaningful understanding, of the impact that his conduct had on the victim and the complainant. The applicant says that he takes responsibility for his conduct. This is because he accepts he has been convicted, after trial, of sexual touching without consent. He still denies the more serious aspects of the allegations that were made against him and attempts to explain away the second complaint.

80. In the circumstances, we are not satisfied that the applicant has sufficient insight about the serious nature of his conduct such that we could be confident that the presumption of risk is displaced. As observed by Mr McBride, remorse and insight is a significant factor in assessments of risk. We accept that there is no evidence that applicant has offended against children. Despite this, the two women involved were young and, while not minors at the time of the offences, they were vulnerable. In these circumstances, it is difficult for the Tribunal to have confidence that the applicant would differentiate between a young employee, or a young woman he is coaching, who is 16 or 17 years old as opposed to one who is 22 years old, as in the case of the victim. The critical concern for the Tribunal is whether the applicant’s lack of insight demonstrates a failure to fully appreciate the potential risk that certain conduct of a sexual nature could create for young vulnerable teenagers. In our view, this lack of insight heightens the potential risk.

78. We accept that the applicant has come a long way since committing the offences and has suffered serious consequences as a result of the conviction. However, this latter issue is not a relevant factor in making the assessment of risk.

79. Having regard to these matters, we give limited weight to the risk assessment undertaken by Mr McBride.

80. We also accept the respondent’s submission that, despite the applicant’s denial about the more serious conduct disclosed by the second complaint and the fact it was not pursued by the complainant, we cannot discount the possibility that the conduct occurred and therefore there is the potential for risk (refer BKH and CXZ).

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

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

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

85. The applicant provided evidence in support of his application, which we have carefully considered.

86. We accept the evidence of the applicant that he is genuine in his remorse and that the conviction has had a significant impact on his life. Against this we also note, is referred to above, that the applicant’s insight in relation to these issues is still limited by his own subjective assessment of the circumstances. He has a tendency to minimise or seek to justify the more serious aspects of his conduct. This may show a lack of insight, or it may be that his was influenced by his motivation to persuade the Tribunal that he does not present a risk.

87. We accept that the evidence provided by his referees of his character and good work ethic in addition to the evidence that he was successful in his application, following a more intensive vetting process, support his contention that the presumption of risk has been displaced. However, on balance, not strongly so.

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

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

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

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

Conclusion

90. Before the Tribunal can make an enabling order, we must be satisfied that the applicant does not pose a risk to the safety of children. The risk must be real and appreciable and not remote or speculative. The determination of this matter is a question of fact, and the assessment must be made at the time of our decision. Evidence of the conduct of the applicant in the past may be relevant to the question of whether an applicant does or does not pose a real and appreciable risk to the safety of children. Examining past conduct and the disqualifying offence, in the context of the mandatory considerations set out in s 30(1), provides the Tribunal with guidance in relation to its approach to fact finding on what is a predictive and forward-looking assessment. The WWC Act establishes a scheme which is protective in nature. The protection of children is a paramount consideration, and this is self-evident in the legislative regime for the granting of approval through an enabling order.

91. Section 28(7) provides that there is a rebuttable presumption that an applicant poses a risk to the safety of children when they are subject to a disqualifying offence. This will ordinarily require more than a denial of the seriousness of previous convictions and charges or mere assertions that the applicant does not pose a risk. The starting position is that if an applicant has been convicted of a disqualifying offence, the Tribunal must be satisfied that he or she does not pose a risk before it can consider making an enabling order. At a practical level, if the respondent provides evidence relating to the disqualifying offence and other material relevant to the mandatory considerations in s 30(1) and that material does not rebut the presumption, it falls to the applicant to answer those matters and to provide an “adequate response” as a basis for “rejecting the affirmative conclusion” (Tilley v Children’s Guardian [2017] NSWCA 174 at [31]).

92. In the present case, the applicant was convicted of a serious offence, albeit at the lower end of the scale of seriousness, in 2020. There is also evidence of a complaint being made of a similar nature within weeks of the first incident. The offence and the incident which was the subject of a complaint were over five years ago. There is no evidence he has committed further offences. The applicant submits, and we accept, that there is no evidence that he has engaged in any misconduct in relation to children. However, we also note that the applicant’s conduct was directed to young vulnerable women. We are not satisfied, based on the evidence, that the applicant fully appreciates the seriousness of his actions. This raises concerns about future risk, and potentially the risk too young underage women, in relation to unacceptable behaviour of a sexual nature.

93. The question is whether we are satisfied that the presumption of risk has been displaced, namely are we positively satisfied the applicant does not pose a real and appreciable risk to the safety of children.

94. Having regard to the material before the Tribunal considered in its totality, we are of the view that the matter is finely balanced because there is no evidence the applicant has engaged in inappropriate conduct with children and there is no evidence he has engaged in misconduct since these incidents occurred. We must nonetheless reach an affirmative conclusion about risk in the applicant’s favour.

95. On balance, we are not satisfied that the presumption of risk has been displaced. In summary, the applicant’s lack of insight into the seriousness of the offences, the targeting of young vulnerable women and the lack of any counselling to identify the cause of the problems and address the issues for the future are determining factors. We are therefore not satisfied at this time that the applicant does not pose a risk to the safety of children. This does not preclude the applicant from making another application in the future.

96. Because we are not satisfied about this, it is unnecessary to consider the supplementary tests.

97. The application for an enabling order under s 28 of the Child Protection Act (Working with Children) Act 2012 (NSW) is refused.

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: 15 July 2025