GQT v Children's Guardian

[2025] NSWCATAD 109

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GQT v Children’s Guardian [2025] NSWCATAD 109

Hearing dates:

24 February 2025

Date of orders:

19 May 2025

Decision date:

19 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Bryant, Senior Member
R Royer, General Member

Decision:

(1) The decision of the Children's Guardian to refuse the applicant's application for a working with children check clearance is affirmed.

(2) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, publication and broadcast of the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the applicant is prohibited.

(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the publication of the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” other than the words in those brackets is prohibited.

(4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the disclosure of the confidential evidence filed by the respondent in these proceedings is prohibited.

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — untested allegations of child sexual assault — confidentiality orders for confidential police documents — whether the applicant poses a risk to the safety of children

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Working with Children) Act 2012

Child Protection (Working with Children) Regulation 2013

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Cases Cited:

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

Brennan v State of New South Wales [2006] NSWSC 167

CDX v Children’s Guardian [2016] NSWCATAD 17

Children’s Guardian v CVE [2017] NSWSC 1342

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

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

CXZ v Children’s Guardian [2020] NSWCA 338

Libdy v Commissioner of Police [2021] NSWCATAD 122

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GQT (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (self-represented)

Crown Solicitor (Respondent)

File Number(s):

2024/00360776

Publication restriction:

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

REASONS FOR DECISION

Introduction

1. The Children’s Guardian refused the applicant a Working With Children Check Clearance (WWCCC) because it is satisfied that the applicant poses a risk to the safety of children. The primary reason for this was because of allegations of sexual assault against his 11-year-old stepdaughter (the complainant) alleged to have occurred in 1986 to 1987. The applicant seeks an administrative review of the decision. We have decided to affirm the respondent's decision to refuse the applicant a WWCCC for the following reasons.

2. Due to the sensitive nature of these proceedings, an order was made on 24 October 2024 under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. To give effect to this order, the pseudonym 'GQT' has been used for the applicant's name and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed.

Material before the Tribunal

3. The applicant provided his Application to the Tribunal, a written character reference and written submissions to the respondent and the Tribunal.

4. The respondent provided a bundle of documents as required by s 58 of the Administrative Decisions Review Act 1997 (ADR Act), open and confidential versions of an affidavit of a NSW Police officer with an Exhibit, open and confidential versions of submissions to the Tribunal for confidentiality orders, and written submissions to the applicant and the Tribunal.

The hearing

5. The respondent sought confidentiality orders from the Tribunal in relation to the confidential version of the affidavit of a NSW Police officer with a confidential Exhibit and confidential submissions. Submissions were received by the Tribunal from both parties in relation to this matter and there was a closed hearing during which confidential information was provided by the respondent to the Tribunal. This is addressed further below.

6. No witnesses were required by the parties for cross examination at the hearing.

7. Both parties made oral submissions at the hearing.

The applicant’s case

8. The applicant submits that the Tribunal should order the respondent to grant him a WWCCC.

The respondent’s case

9. The respondent submitted that the Tribunal should dismiss the application and affirm the decision to refuse the applicant a WWCCC. The respondent submitted that the applicant poses a risk to the safety of children and should not be granted a WWCCC on the basis of the considerations in s 30(1) and s 30(1A) of the Act.

Legislation

10. The Act establishes a regime of checks and clearances for persons working with children in NSW. The object of the Act is in s 3. The paramount consideration in the operation of the Act is found in s 4:

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

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

11. The following terms are defined in s 5 of the Act:

5 Definitions

(1) In this Act—

…

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

…

child-related work—see sections 6 and 7.

children means persons under the age of 18 years.

…

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

12. Risk to the safety of children is defined as follows:

5B Meaning of “risk to the safety of children”

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

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

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

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

16. Section 14 specifies that an applicant for a WWCCC is subject to an assessment requirement as follows:

14 Assessment requirements

A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.

17. Section 15 makes provision for the Children’s Guardian to conduct a risk assessment of an applicant for a WWCCC.

18. Section 18(2) applies where the applicant is subject to a risk assessment and provides that the Children’s Guardian must grant a WWCCC unless it is satisfied that the person poses a risk to the safety of children:

18 Determination of applications for clearances

…

(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.

19. Section 27 makes provision for administrative review under the Act as follows:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

20. Section 30 provides guidance to the Tribunal when determining an application for review:

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

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

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

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

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

21. Schedule 1 specifies triggers for a risk assessment under the Act. In this case the relevant part is found in Schedule 1, clause 1(1)(b).

Consideration

Background

22. The applicant is a 64-year-old man living in Sydney. The applicant applied for a clearance under the Act in order to be eligible for the presidency of his local speedway club in a voluntary capacity.

The criminal charges and allegations

23. On 7 April 1987 the applicant was charged with three counts of sexual assault under s 61E(2A) of the Crimes Act 1900 NSW (Crimes Act). Section 61E of the Crimes Act, which is now repealed, was for ‘Sexual assault category 4, indecent assault and act of indecency’ involving a person (child) under 16 years of age, with subsection (2A) applying where the child was under the authority of the person charged at the relevant time. The applicant was in a relationship with the complainant’s mother at the time of the alleged conduct and was charged under subsection (2A) because the complainant was the applicant’s stepdaughter.

24. On 9 October 1987, all three charges were dismissed by the Local Court of NSW.

25. An offence under s 61E of the Crimes Act is a trigger offence under Sch 2, cl 1(d) of the Act.

26. Through the working of s 15(1), s 14, Schedule 1, cl (1)(b) and Schedule 2, cl 1(d) of the Act the respondent must conduct a risk assessment where a person has been charged with an offence under s 61E of the Crimes Act while the person was an adult and the person is not a disqualified person because of those proceedings.

27. After the respondent became aware of the trigger offences it conducted a risk assessment of the applicant as required by the Act.

28. The applicant denied the sexual assault allegations during the respondent’s risk assessment process and also during the proceedings before the Tribunal.

29. The respondent obtained records about the applicant during (and subsequent to) its risk assessment process from NSW Police, NSW Courts and the Department of Justice and Communities (DCJ). This material was included in the s 58 documents provided by the respondent to the Tribunal in these proceedings and is referred to at various points in these reasons. The respondent raised further matters of concern about the applicant’s suitability to hold a WWCCC as a result of this information. These matters are:

1. Sexually inappropriate comments made by the applicant to the complainant and her sisters, being the words “show us your tits”, occurring between 1987 and 1991.

2. One alleged incident of violence at a service station in 2005. The applicant was not criminally charged in relation to this incident.

3. One charge of common assault, arising from a physical altercation with another driver at the speedway, that was dismissed in 2008.

30. The respondent also relied upon confidential information provided by NSW police, that has not been provided to the applicant, as referred to further below.

31. Under s 18(2) of the Act, the respondent must grant a WWCCC to a person who is subject to a risk assessment under Division 3 of the Act unless the respondent is satisfied that the person poses a risk to the safety of children.

32. The respondent refused to grant the applicant a WWCCC following its risk assessment because it is satisfied that the applicant poses a risk to the safety of children.

Administrative review under s 27 of the Act

33. Subsection 27(1) allows a person who has been refused a WWCCC to apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (ADR Act) within 28 days after notice of the decision was provided to the person. The decision under review is dated 1 February 2024. The application for administrative review was filed on 22 February 2024, within the 28-day period.

34. In determining an application for review, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: s 63 of the ADR Act. The Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2) ADR Act.

35. The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

36. Neither the applicant or the respondent bears an onus in an application for review under s 27 of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40].

37. The applicant has a duty to fully disclose any matters relevant to the application to the Tribunal: s 27(4) of the Act.

38. Following an application under s 27, a clearance may not be granted subject to conditions: CDX v Children’s Guardian [2016] NSWCATAD 17 at [36].

39. Under s 30(1A) of the Act an order enabling a person to work with children may not be made unless the Tribunal is satisfied that—

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

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

40. The Tribunal must consider each of the matters in s 30(1) of the Act to assess whether it is satisfied that the applicant does or does not pose a risk to the safety of children. If the Tribunal is satisfied that the applicant does not pose a risk to the safety of children, it must then assess whether it is satisfied that the (a) “reasonable person” test and (b) the “public interest” test in s 30(1A) of the Act have been met: Children’s Guardian v CVE [2017] NSWSC 1342 at [23], [26].

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

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

42. “Risk to the safety of children” is defined in s 5B of the Act as “a real and appreciable risk to the safety of children”.

43. The meaning of “risk” was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949 at [42] (cited with approval in BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]):

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

44. The Tribunal’s process of assessment of risk was described by Simpson AJA in CXZ v Children’s Guardian [2020] NSWCA 338 at [57]-[58] as follows:

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.

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.

Information from NSW police

45. The respondent desired to rely upon confidential documents from NSW Police and sought confidentiality orders from the Tribunal, including for a private hearing, for that purpose. The respondent referred the Tribunal to the open submissions for confidentiality orders and open affidavit of a NSW Police officer dated 31 January 2025 with Exhibit IR-2. In summary, the reasons supporting confidentiality orders and a private hearing were:

1. Police practices and methodologies are exposed by the confidential documents.

2. Police sources and information concerning informants are disclosed in the confidential documents.

1. The confidential documents were supplied by NSW police to the respondent confidentially, on the condition that they would not be disclosed to the applicant. The confidential information was utilised by the respondent in conducting its risk assessment of the applicant and is therefore relevant to the Tribunal’s task in these proceedings.

46. The applicant submitted that he is disadvantaged because he has not seen the confidential documents and therefore cannot argue his side of the case. The applicant submitted that allegations from the complainant are untested and he should not be treated as the guilty party as he has not done anything wrong.

47. The Tribunal recognises that public interest grounds such as protecting police investigative techniques, the protection of the confidentiality of police sources and not disclosing information concerning informants may provide a strong basis for confidentiality orders to be made. See for example, Brennan v State of New South Wales [2006] NSWSC 167 and Libdy v Commissioner of Police [2021] NSWCATAD 122.

48. The Tribunal agreed with the reasons provided by the respondent in support the confidentiality orders and a closed hearing. The Tribunal was satisfied that it was desirable for confidentiality orders to be made and for there to be a closed hearing in this case.

Closed hearing

49. [NOT FOR PUBLICATION]

The applicant’s evidence

50. The applicant did not provide sworn evidence to the Tribunal in an affidavit or statutory declaration. The applicant did not give evidence as a witness before the Tribunal, even though he was provided with the opportunity to do so at the hearing. As a result, the applicant was not cross-examined by the respondent.

51. The applicant’s evidence consisted of written submissions, a form completed for the purpose of his WWCCC application, correspondence with the respondent and a written character reference dated 12 December 2024.

52. The character reference attests to the applicant’s good character, strong family values, trustworthiness and generosity over the 34 years the author has known him, originally through his profession and subsequently as a close personal friend, including during the last 10 years they have spent in volunteering at their local speedway together.

53. The respondent provided the Tribunal with an email exchange in January 2025 between a solicitor from the NSW Crown Solicitor’s Office and the author of the character reference. It is clear from the email exchange that the author of the reference was aware of the applicant’s assault charge in 2008 but did not seem to be aware of the applicant’s sexual assault charges in 1987. The applicant conceded that he did not inform the author of the character reference of the sexual assault charges.

54. The respondent submitted that no weight can be afforded to the character reference in these circumstances.

55. In oral submissions, the applicant submitted that he has been a senior trainer and scrutineer in speedway clubs for 30 years and has also served as vice president. The applicant said that he is a licensed mechanic and he needs the WWCCC as a scrutineer as he has grandchildren coming up the ranks. The applicant said that he is not able to be the president of the club without a WWCCC.

56. The applicant referred to the sexual assault allegations and the respondent’s risk assessment process in refusing him a clearance. The applicant said that he does not understand how he can be found ‘guilty’ in this process based on innuendo. The applicant submitted that the sexual assault charges were brought about by a very messy divorce and an unstable child and that he has never had a chance to defend his name. The applicant stated that a lot could be said about the complainant but that he does not want to say it. It was not clear to the Tribunal what the applicant meant by this comment. The applicant said that he is innocent.

The sexual assault allegations and sexually inappropriate comments (1986-1991)

57. The applicant was in a relationship with the complainant’s mother and lived in the same home as the complainant and her sisters as their stepfather. The applicant is said to have sexually assaulted the complainant, who was about 11 years of age, on more than one occasion in 1986 and early 1987.

58. The acts of indecency allegedly occurred on three separate occasions, including the applicant taking the complainant to his bedroom and placing her hand on his penis then fondling her vagina. On another occasion the applicant allegedly fondled the complainant’s breasts and vagina, then proceeded to put her hand on his penis.

59. Little further detailed information is provided about these allegations in the s 58 documents and other open documents provided by the respondent.

60. The applicant was charged with three separate sexual offences against the complainant when she was 11 years old. These charges were dismissed in 1987.

61. The respondent submitted that the Tribunal should consider the evidence provided in the confidential material in determining whether by the possibility of the conduct occurring means the applicant poses a risk: CXZ v Children's Guardian [2020] NSWCA 338 at [57]. The Tribunal agrees with this submission.

62. The respondent submitted that although the allegations against the applicant are historic, they are extremely serious and have led to the complainant exhibiting lifelong trauma. The respondent submitted that the allegations are credible and aspects of them have been corroborated by evidence including witness statements provided to the Police.

63. It is alleged that sexually inappropriate comments were made by the applicant to the complainant and her two older sisters, being the words "show us your tits", occurring between 1987 and 1991. The applicant is also said to have added to this comment, in the complainant’s case, the words “you’re my favourite”. The source of this information is the complainant’s mother, who was interviewed by DCJ in 1991. Although the complainant’s mother initially suggested the comments were made as a joke, she later acknowledged that they were inappropriate.

64. The respondent submits that the sexually inappropriate comments add weight to the sexual assault allegations, particularly where the complainant is singled out as the applicant’s favourite. The respondent submits that the comments are also a form of sexual harassment. One of the complainant’s older sisters was under 18 years of age during this period, and the other would have turned 18 in approximately 1988.

The service station incident in 2005

65. In 2005 the applicant was conducting a business as a mechanic at a workshop attached a service station. The incident involved an altercation between the applicant and the service station operator, the alleged victim, over the applicant repairing a broken-down vehicle on the service station driveway that obstructed customers from entering the service station. The argument became heated, and there was a scuffle between the applicant and the service station operator. Although the alleged victim initially wanted the applicant to be charged, the police officer investigating the incident formed the view that the alleged victim had embellished his account of the incident to the police because he had verbally abused the applicant beforehand by calling him a “piece of shit”, and a witness said the scuffle lasted only a short time. The applicant was not criminally charged in relation to this incident.

Common assault charge in 2008

66. The charge of common assault arose from the applicant’s physical altercation with another driver at a speedway. The applicant and the alleged victim were both competing in a race. The applicant’s vehicle crashed during the race, for which he appeared to blame the alleged victim. The applicant allegedly approached the victim, who was still in his vehicle with his helmet on, and swore at him. The applicant then punched the side of the victim’s helmet twice with a clenched fist, grabbed the victim’s arm when the victim tried to stop him, and forced the victim’s arm downwards causing it to hyperextend painfully.

67. This charge was dismissed in 2008. The applicant submitted that these allegations were “thrown out of court” and that the other party to the altercation is now the president of the speedway club.

68. The respondent submitted that the 2005 and 2008 incidents suggest that the applicant may have impulse control issues and a proclivity to use of violence as a means of conflict resolution.

Assessment of risk

69. The allegations relied upon by the respondent in refusing to grant the applicant a WWCC are untested, and the applicant has not been convicted of any offences.

70. Turning to the sexual assault allegations and sexually inappropriate comments first, the complainant was not called as a witness before the Tribunal and was therefore not available for cross examination.

71. The applicant did not give evidence before the Tribunal and was not able to be cross-examined. The applicant denied the allegations in both oral and written submissions. However there was no real opportunity to test these denials further with the respondent in circumstances where he did not give evidence. The applicant did not give a reason for his unwillingness to provide evidence as a witness before the Tribunal and we have drawn no inference from his decision not to do so.

72. The Tribunal, after reviewing the evidence, is unable to be satisfied as to the truth of the allegations. The Tribunal must therefore consider whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children, including based on any other evidence that indicates such a risk: CXZ v Children's Guardian [2020] NSWCA 338 at [57].

73. The Tribunal also has regard to the confidential material provided by the respondent.

74. The Tribunal did not consider the explanations offered by the applicant for why the complainant would make allegations of this type to be persuasive. The applicant’s contention that the allegations were made due to a “messy divorce” does not make sense. The applicant was married to the complainant’s mother in 1988, the year after the charges were dismissed in 1987. They were not divorced until 2004. The applicant’s reference to the complainant being an “unstable child” does not really assist either. This is because research has shown that the impact of child sexual abuse often involves a victim experiencing trauma and mental health issues, and other similar markers which may externally present to others as signs of instability. In this case the complainant used illicit drugs, experienced homelessness, social isolation and alienation from her family. The respondent submitted that some of this can be attributed to the applicant's alleged conduct.

75. We have given limited weight to the character reference provided by the applicant where the author did not have knowledge of the sexual assault allegations.

76. The 2005 and 2008 incidents did not involve convictions. The applicant was not charged in relation to the first incident and the charges were withdrawn in relation to the second incident. Neither of these incidents involved children. The Tribunal is less concerned about these matters. Accordingly, they have been limited weight.

77. After carefully considering all of the material and evidence before the Tribunal, we find that sexual assault allegations and sexually inappropriate comments are not baseless and that there is a real risk or possibility that the applicant engaged in the conduct as disclosed by the complainant.

The considerations in s 30(1) of the Act

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

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

79. The Tribunal has found that it does not consider the following allegations to be baseless, and that there is a real risk or possibility that they occurred:

1. Allegations of sexual assault against the complainant, which led to the applicant being charged with three separate alleged sexual offences against an 11-year-old child who the applicant had a position of authority over.

80. These allegations are very serious, involving sexual assault by the applicant against the complainant who was his stepdaughter at the time.

81. The alleged sexually inappropriate comments made by the applicant to the complainant and her older sisters, being the words "show us your tits", occurring between 1987 and 1991 are also serious.

82. The alleged assaults in 2005 and 2008 are less serious.

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

83. The sexual assaults are alleged to have occurred between 1987 and 1988, some 37 to 38 years ago.

84. The sexual harassment conduct “show us your tits” occurred between 1987 and 1991.

85. The assault on 23 March 2005 is 20 years old and the assault on 28 January 2008 is 17 years old.

86. There have been no allegations since 2009.

87. The applicant has no criminal history.

88. The respondent submitted that there is no evidence of any rehabilitation since the alleged offending against the complainant and nothing in the material from the applicant that indicates a change by him in response to the offending.

89. The applicant submitted that the sexual assault allegations are untrue and unproven.

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

90. The applicant is 64 years of age.

91. The applicant was about 25 years old at the time of the alleged sexual assaults.

92. The applicant was 44 years old in 2005, and 46 years old in 2008.

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

93. The complainant was aged about 11 years old at the time of the alleged sexual offences. The applicant knew the complainant was a child. The complainant was vulnerable because she was a child and dependent on the applicant for care as her stepfather at the time.

94. There is no evidence that the 2005 and 2008 incidents involved children in any way.

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

95. The respondent submitted that the likelihood of repetition is difficult to assess, as the applicant has not accepted responsibility for any of the alleged sexual offences and asserts none of them occurred.

96. If the alleged sexual offences were repeated the impact on a child victim would be significant, and would include sexual, psychological and emotional harm.

97. The 2005 and 2008 incidents occurred in public settings, a service station and a speedway, where children may be present. A child witnessing such conduct, were it repeated, would be emotionally impacted.

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

98. There is no order currently in force in relation to the applicant.

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

99. The applicant denied the sexual assault allegations and provided brief explanations for the other incidents relied upon by the respondent. The applicant did not provide direct information or evidence in response to the sexual assault allegations. The applicant provided one character reference from an individual that the applicant conceded was not aware of the sexual assault allegations that have been made against the applicant.

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

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

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

101. These matters have already been referred to earlier in these reasons.

Conclusion as to risk to the safety of children

102. The Tribunal is satisfied that sexual assault and sexual harassment allegations are not baseless and that there is a real risk or possibility that the applicant engaged in the conduct as disclosed by the complainant. This conduct, in our view, creates a risk to the safety of children.

103. Accordingly, the Tribunal is satisfied that the applicant poses a risk to the safety of children.

Conclusion

104. In all the circumstances and considering the s 30(1) criteria, on the material before it, the Tribunal has found that the applicant poses a real and appreciable risk to the safety of children.

105. Although consideration of the matters in s 30(1A) is not necessary following such a finding, for completeness we also confirm that we would not make an order which has the effect of enabling the applicant to work with children because of the finding we have made at [77], as:

1. We are not satisfied a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work;

2. We are not satisfied that it is in the public interest to make such an order.

106. It follows that the application must be refused.

Order

1. The decision of the Children's Guardian to refuse the applicant's application for a working with children check clearance is affirmed.

2. Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, publication and broadcast of the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the applicant is prohibited.

3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the publication of the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” other than the words in those brackets is prohibited.

4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, other than to the Tribunal and respondent, the disclosure of the confidential evidence filed by the respondent in these proceedings is prohibited.

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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: 19 May 2025