GRF v Children's Guardian

[2025] NSWCATAD 111

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GRF v Children’s Guardian [2025] NSWCATAD 111

Hearing dates:

14 May 2025

Date of orders:

14 May 2025

Decision date:

20 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member
Emeritus Prof P Foreman AM, General Member

Decision:

(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction for sexual assault in contravention of s 40(1) of the Crime Act 1958 (Vic), which is equivalent to s 61KC(a) of the Crimes Act 1900 (NSW).

(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a Working with Children Check Clearance.

Catchwords:

ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — refusal by Children’s Guardian in relation to a disqualified person — applicant pleaded guilty to offence in Victoria — enabling order application under section 28 — whether a real and appreciable risk is posed by the applicant to the safety of children— enabling order made.

Legislation Cited:

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

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes Act 1958 (Vic)

Cases Cited:

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

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GRF (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self represented)
G Bromwich (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00375128

Publication restriction:

With the exception of 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 27 August 2024, the applicant, who had been given the pseudonym GRF, 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 6 September 2024.

2. The basis for refusal was that the applicant is a “disqualified person” under the WWC Act because he was found guilty in April 2023 of an offence identified as an “disqualifying offence” for the purposes of the WWC Act.

3. The applicant applied for an administrative review seeking review of the decision to refuse his application for a clearance on the grounds, amongst other things, that the charge carried no conviction. His application has been treated by the respondent and the Tribunal as an application for an enabling order and for an order to be granted a clearance under ss 28(1) and (6) of the WWC Act, rather than an application for administrative review. 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. He gave oral evidence at the hearing in support of his application and was cross examined by Ms Bromwich, who appeared on behalf of the respondent. The applicant also gave oral evidence in response to questions raised by the Tribunal. At the close of the evidence, Ms Bromwich advised that the respondent did not oppose the application.

5. Having regard to the material before the Tribunal, including the evidence of the applicant, the Tribunal decided to make an enabling order and to grant the clearance as requested by the applicant. The orders were made at the end of the hearing. These are our reasons.

Background

6. On 14 April 2023, the applicant was found guilty in relation to one count of the Victorian offence of sexual assault pursuant to s 40(1) of the Crimes Act 1958 (Vic). He was fined $4,000. The conduct which gave rise to the finding of guilt related to an incident on 5 May 2022, when the applicant was, on his own admission, highly intoxicated. After spending a day at the races, the applicant was drinking at a hotel in Victoria. He had been drinking alcohol all day. While intoxicated, he approached the victim and used an open hand to smack her on the right buttock with some force. The victim turned around and objected. She also observed that the applicant was “smirking” at her. The victim called a security officer, who then ejected the applicant from the premises.

7. The applicant appeared before the [Victorian town] Magistrates Court on 14 April 2023. He was fined $4000 by the Magistrate but no conviction was recorded. The incident occurred after midnight and in the early hours of the morning.

8. After receiving the application for a clearance, the respondent undertook the relevant criminal records searches and identified that the applicant had been charged with and found guilty of sexual assault in Victoria. Having regard to the applicant’s criminal record, the respondent found that the applicant was a “disqualified person” for the purposes of the WWC Act. Relevantly, the respondent was satisfied that, if committed in NSW, this offence would constitute a disqualifying offence under the WWC Act. If a person making an application for a clearance is a disqualified person, the respondent cannot grant that person a working with children check clearance and the person must apply to this Tribunal for an enabling order.

9. The applicant has been involved with [NSW town] sporting club as a volunteer for many years. He was the President of the Club for three years and at the time of his application. He applied for a working with children check clearance because he understood that he required a clearance as President of the Club. He previously held a clearance in Victoria, but this clearance has since lapsed. The applicant plays at the Club and has been involved in the organising committee for a number of years. He does not coach, referee, or umpire children but may consider this in the future. Given the broad nature of his role as President, it was considered that the applicant should have a working with children check clearance. When his clearance was refused by the respondent, the applicant resigned from his role as President.

Statutory framework

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

11. 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.

12. 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.

13. 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.

14. 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

15. Section 27 provides that a person who has been refused a working with children check clearance by the respondent may apply to the Tribunal for an administrative review of this decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act)

16. Section 28 relates to enabling orders and has a different jurisdictional basis to the administrative review of a refusal. 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.

17. As already noted, this is an application pursuant to s 28 of the WWC Act.

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

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

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

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

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

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

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

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

(g) the person's present age,

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

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

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

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

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

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

19. 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.

20. 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.

21. 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.

Preliminary issue

22. In the decision dated 6 September 2024, the respondent found that the applicant was a disqualified person, and his application was therefore refused pursuant to s 18(1)(a) of the WWC Act. There is no discretion to grant the clearance in these circumstances and the respondent must refuse the clearance. Despite this, if a person nonetheless wishes to obtain a working with children check clearance, they must first apply for enabling order from the Tribunal. As such, the question of whether the applicant is a disqualified person for the purposes of the WWC Act is an important preliminary issue for consideration.

23. As noted above, 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. Clause 1(z) provides that a disqualifying offence is “an offence under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence listed in this clause”.

24. In this case, the applicant was found guilty of a law in another State, namely Victoria, under s 40(1) of the Crimes Act, which provides as follows:

Sexual assault

(1)   A person (A) commits an offence if—

(a) A intentionally touches another person (B); and

(b) the touching is sexual; and

(c) B does not consent to the touching; and

(d) A does not reasonably believe that B consents to the touching.

25. The respondent contends that this offence would be an offence if committed in NSW, noting that s 61KC of the Crimes Act 1900 (NSW) contains similar elements to those in the Victorian sexual assault offence. 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.

26. Section 61KC of the NSW Crimes Act is a disqualifying offence under cl 1(e), Schedule 2.

27. At the time of assessing the application, the respondent concluded that the applicant was a disqualified person because he was found guilty of “sexual assault” in Victoria. This offence is equivalent to the NSW offence of “sexual touching” under s 61KC. Having regard to the provisions of clauses (1)(e) and (1)(z), the Victorian offence of sexual assault is a disqualifying offence for the purposes of the WWC Act. As such, at the time of the application, the applicant was a disqualified person for the purposes of s 18(1)(a) of the WWC Act. It does not matter that no conviction was recorded as the definition for “conviction” set out in s 5 of the WWC Act is broad enough to cover a finding of guilt without conviction. Relevantly, s 5 provides that a “conviction” includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

28. We agree with these findings and therefore find that the applicant was, at the relevant time, a disqualified person.

Outline of evidence

29. The respondent provided several bundles of documents containing details about the charges and criminal brief leading to the applicant’s conviction. Relevantly, the respondent included the transcript of the sentencing remarks made by the Magistrate on 14 April 2023 where the Magistrate said, in addressing the applicant:

…the events during that time, Warrnambool Cup week in 2022, do you no credit at all, and you should be thoroughly ashamed of yourself for what has occurred.

And particularly, the impacts on the victim. You were not to know, but nor would it make any difference, as to whether or not she had experienced issues of this kind in the past, sexual assaults or otherwise. You have got to treat people, victims, as you find them. And the reality is you do not know what is going on in someone else's life. This has had a profound effect, having heard the victim impact statement, on [the victim]. And the reality is that that is has ramifications for her work as well, as her personal enjoyment of life and her sense of safety and security, which all women, and indeed all people, should have. The reality is that, if you go to a hotel or any other public venue, you should go on the assumption that everything will be okay, that it will be a safe and convivial environment, not one that is fraught with behaviours.

Now, what I can, I think, conclude is necessarily there is no predatory-type element to your offending. It is something that was borne of your intoxication significantly, it seems. And I do not sense that that is an ongoing issue for you. I think it is a once-off in the context of the company, the environment, the day, the moment perhaps, if you like. But it should not have happened. And you know that better than anyone. And I can appreciate your acknowledgement. I thank you for doing that.

And so, the apology, you believed you apologised at the time, but you did not. I think, as today, through Mr Kennedy, in any event, and I am sure that [the victim], the victim, will at least get some, hopefully, comfort, and hopefully also, after today, some sense of closure from today.

You should understand that sexual assault charges brought, as this one is, pursuant to s 40 of the Victorian Crimes Act, has a maximum penalty of ten years' imprisonment. That is the extent to which parliament have regarded the nature of this offending and the seriousness of it. It is reflected by the maximum penalty. I accept it does not fall at the highest end of that kind of behaviour, it is at rather the lower end of the kind of behaviour, and that is a very rudimentary analysis. But there are lots of kinds of ranges of behaviours that might formulate and might be described as sexual assaults. And this is, for your sake, thankfully, towards the lower end, although not to diminish the impacts on the complaint for one moment.

30. The Magistrate, in deciding not to impose a conviction but rather a fine, noted that if it were not for the plea, he certainly would have been thinking about a gaol sentence.

31. The other documents provided by the respondent reveal that the applicant has not been charged or convicted of any other criminal offences. Nor is there evidence of any other misconduct.

32. The applicant provided a statement to the Tribunal in support of his application to the effect that he “fully acknowledged and took full responsibility” for the incident. He further stated as follows:

The incident in question occurred on May 4th 2022 at a licensed venue in Warrnambool, Victoria, late at night and was a result of a regrettable, one­time lapse in judgment while under the influence of alcohol. I have never before, nor since, had any trouble with the law, and I deeply regret the actions that led to this incident. I have taken full responsibility, cooperated with authorities, and learned valuable lessons from this mistake. I assure the Court that this was an isolated incident and not reflective of my character or values.

33. When cross examined about his behaviour, the applicant agreed his conduct was wrong. He said that he had obviously hurt the victim, and he did not want to hurt any person. He was sorry, remorseful and very embarrassed. The applicant said that he was very intoxicated at that time of the incident but agreed this was not an excuse. The applicant said that he had never done anything like this before. He had been dared to do it and realises that this was “very stupid”. The applicant accepted that the victim was negatively impacted by his conduct and that if he were to engage in this behaviour in the future, any victim would be negatively impacted. He said that after the incident he had sought counselling and had completed approximately four or five therapy sessions. He had not previously undertaken therapy. He had found this to be helpful. The applicant said that his wife knew about the incident and supported him.

34. When asked to describe his conduct, the applicant said that it was “creepy and not acceptable”.

35. The applicant said that he now drinks alcohol on a Friday and Saturday evening and there have been occasions when he has been intoxicated but never when children were present. The applicant said that he had been drinking too much leading to the incident in 2022, but this has changed since the birth of his child. The applicant said he has “grown up” and learned from his previous mistakes. The applicant currently works as an agricultural supervisor. He does not drink at work and only drinks on social occasions, and sometimes after sport.

36. The applicant also provided references from people in the community who he has played sport with for many years. They attest to his good character, although they do not refer to the previous conviction. It is clear from the references that the applicant has been very involved in the local community for a number of years and, according to his referees, he is well respected. According to one of the applicant’s referees, his leadership and work in the sporting club has been instrumental to the Club's growth and success. He has mentored many players over the years and was described by one of his referees as dedicated and committed.

Submissions

37. The applicant submits that an enabling order should be made and that he should be granted a working with children check clearance. He is remorseful about his previous conduct. This was a one-off incident and a serious mistake. He has taken full responsibility for the mistake and was penalised by the court. Even though he was found guilty, there was no conviction recorded. The applicant submitted that he had been an active and respected member of the local community for many years. He submitted that he needed a working with children check clearance so that he could continue to contribute to the work of the sporting club and possibly to coach.

38. The respondent submits that the disqualifying offence of sexual assault, and its NSW equivalent of sexual touching without consent, are inherently serious. These matters were addressed by the Magistrate in his sentencing remarks. However, the responded accepts that the applicant's conduct was at the lower end of seriousness, and this was reflected in the Court’s ultimate determination, which was unopposed by the prosecution, that the applicant be fined with no conviction recorded. There is no evidence of further offending and the applicant’s character references, which do not specifically refer to the offending, indicate the applicant has generally proactively engaged positively in the community. On the question of whether there is a likelihood that the applicant would repeat his conduct, the respondent stated that the Children’s Guardian was unable to make an assessment until after the applicant’s evidence at the hearing.

39. On the approach that should be taken in relation to s 28, the respondent referred to observations made by Beech-Jones J in BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 (BKE) including to the following effect:

1. In most cases in which the Tribunal makes an enabling order, it will also order the Respondent to grant a clearance at [23].

2. When considering whether to make an enabling order, the Tribunal is not confined to considering the disqualifying offence at [24].

3. The concept of a "risk to the safety of children" in s 28(7) invoked “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children” (citing Young CJ in Commission for Children and Young People v V [2002] NSWSC 949) at [25]-[26].

4. There is no scope for a calibrated assessment of risk that takes into account the children that an applicant is actually likely to come into contact with as a result of their actual proposed work at [27].

40. The respondent further submitted that if the Tribunal forms the view that the applicant displaced the presumed risk as required under s 28(7), the first of the supplementary tests for making an order, namely the reasonable person test, would also be satisfied. The respondent submitted that, in considering whether the public interest test is satisfied, matters which are in the private interests of an individual applicant should only be considered insofar as those matters have a wider public interest. The respondent accepts that there is some public interest in the applicant being able to engage in local volunteer and sporting activities for his community.

Consideration

41. Having regard to the evidence and submissions made in the proceedings, the issues for determination were whether an enabling order should be made and, if so, whether the Tribunal should grant a working with children check clearance pursuant to s 28(6) of the WWC Act. As already noted, we have found that an enabling order should be made, and that the applicant should be granted a working with children check clearance.

Should an enabling order be made?

42. We have considered each of the considerations set out in s 30(1) of the WWC Act. Having regard to these considerations and the evidence before the Tribunal, we are satisfied that the applicant has displaced the presumption of risk for the following reasons:

1. We accept that the offences in respect of which the applicant was found guilty are inherently serious, but we also accept that the applicant's conduct was at the lower end of seriousness and this was reflected in the Magistrate’s decision not to record a conviction.

2. It has been nearly three years since the offending conduct took place and there is no evidence of further offending. It is also relevant to note, and this was accepted by the respondent, and that the applicant’s references generally support his contention that he has positively engaged in the community without offending since this time.

3. The applicant was 34 years old the time of the offending conduct and the victim, who was an adult, was aged 29 years old. It is accepted by the respondent that the victim does not appear to have been in a position of particular vulnerability that would have been known to the applicant. The applicant and the victim were not known to each other and the applicant was proximately five years older than the victim. The victim was not a child. Overall, these are matters, when taken as a whole, tend to weigh in his favour on the question of risk.

4. The applicant impressed the Tribunal with his evidence about his remorse and his apparent insight into the seriousness of his behaviour. He readily acknowledged that his conduct had negatively impacted the victim and further acknowledged that any such conduct in the future would negatively impact any other victim. He is remorseful for the hurt he has caused and, while he said this was a one-off incident under the influence of alcohol, the applicant did not attempt to minimise the seriousness of his offending. He described it as creepy, inappropriate and wrong. There is evidence that the applicant sought counselling after the incident and has changed his approach to drinking alcohol. The applicant is married with a young child and says that he is more mature. Overall, we are satisfied that the applicant’s evidence is genuine, and his apparent contrition is compelling. Having regard to these matters, and the powerful lesson that the applicant appears to have learned, we are satisfied there is little risk of the applicant reoffending and, in particular, offending in the presence of children. This weighed in the applicant's favour.

5. The applicant provided information in response to the application that he is in stable employment, is married with a young child and has not been the subject of disciplinary action or any complaints at work. The respondent accepted that there is no evidence to suggest that this information is anything other than truthful. It is also accepted that these matters weigh in the applicant’s favour.

6. There is information that the applicant was granted a Victorian working with children check clearance on 14 May 2018 and, on reassessment on 18 November 2022, it was determined to maintain this clearance. This clearance lapsed on 14 August 2023 and the applicant did not reapply for clearance in Victoria. This consideration is neutral.

7. The respondent submitted, and we accept, that the applicant’s active engagement in the community both before and after his offending, when considered with the nature of defending, weighs in favour of displacing the presumed risk.

Should an order be made to grant the clearance?

43. Having decided that enabling order should be made, the Tribunal considered the question of whether the applicant should be granted a clearance.

44. The Tribunal must not make an order enabling the applicant to work with children unless it is satisfied that a reasonable person would allow their own child to have direct, unsupervised contact with the applicant while engaging in any child related work. This is an objective test. The reasonable person is taken to know matters such as the details of the index offence, the circumstances surrounding the offence, the applicant’s criminal history and the length of time since these events. The respondent submitted that a reasonable person would not approach the task with a closed mind thinking that once a person has offended, he or she can never be redeemed.

45. The respondent also submitted that the reasonable person would be primarily concerned with the matters set out in s 30 and noted that, if the applicant is able to displace the presumption of risk, the reasonable person test would also be satisfied. We accept these submissions in the circumstances of this case and so find.

46. We are also satisfied that there is a public interest in the applicant being granted a clearance. There is evidence that the role previously undertaken by the applicant was for the broader benefit of his community, not simply for his own advantage or enjoyment. Notably, there is evidence from others within the community that there are benefits in the applicant continuing to undertake the activities in a sport where he has special skills and, as assessed by others, special leadership ability. Mentoring of others, including potentially young players, was considered by the applicant’s referees to be particularly important. We accept this evidence.

47. We also note that the respondent submitted that, if the presumption is displaced, neither the reasonable person nor public interest tests would preclude the Tribunal making an enabling order. This was consistent with our review of the evidence and, as such, we are satisfied that an order should be made under s 28(6) of the WWC Act.

**********

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: 20 May 2025