GTN v Children's Guardian

[2025] NSWCATAD 197

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GTN v Children’s Guardian [2025] NSWCATAD 197

Hearing dates:

23 July 2025

Date of orders:

11 August 2025

Decision date:

11 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member
Emeritus Prof P Foreman AM, General Member

Decision:

(1) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purpose of that Act in respect of an offence contrary to s 61N(1) of the Crimes Act 1900 of which he was found guilty on 17 December 2010, but without proceeding to a conviction.

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

Catchwords:

ADMINISTRATIVE LAW – Application for review under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – Applicant a disqualified person – whether the person poses a risk 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)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

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

CHB v Children’s Guardian [2016] NSWCATAD 214

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

CRG v Children’s Guardian [2017] NSWCATAD 295

CTE v Children’s Guardian [2018] NSWCATAD 28

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

CXZ v Children’s Guardian [2020] NSWCA 338

BFX v Children’s Guardian [2014] NSWCATAD 115

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

DAI v Children’s Guardian [2017] NSWCATAD 308

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

EOL v Children’s Guardian [2021] NSWCATAD 146

Hogan v Hinch (2011) 243 CLR 506

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

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

Smith v Commissioner of Police [2014] NSWCATAD 184

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

Sinclair v Maryborough Mining Warden (1975) 132 CLR 473

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

ZZ v Secretary Department of Justice [2013] VSC 267

Texts Cited:

Nil

Category:

Principal judgment

Parties:

GTN (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel
C Nowlan (Applicant)
J Curtin (Respondent)
Solicitors:
Marando Solicitors (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00450553

Publication restriction:

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

REASONS FOR DECISION

Introduction

1. In this case, the applicant asked the Tribunal to administratively review the respondent’s decision dated 15 November 2024 (Refusal Decision) to refuse to grant a working with children check clearance to him on the grounds that he is a disqualified person within the meaning of s 18(1)(a) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act).

2. The applicant is a disqualified person, having been found guilty on 17 December 2010 of an offence specified in Schedule 2 of the Act, namely the offence of ‘Incite person under 16 years to commit act of indecency’ contrary to s 61N(1) of the Crimes Act 1900 (NSW) (the Disqualifying Offence). The applicant was not convicted but was directed to enter into a good behaviour bond for 12 months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3. Pursuant to s 28 of the Act, the applicant sought an enabling order from the Tribunal declaring that he is not to be treated as a disqualified person for the purposes of the Act in respect of the Disqualifying Offence. He also sought an order that the Children’s Guardian issue a clearance to him.

4. In any proceedings where an enabling order is sought, the applicant is presumed to pose a risk to the safety of children unless proven to the contrary: s 28(7) of the Act.

5. If the Tribunal is positively satisfied that the applicant does not pose a risk to the safety of children, it is empowered to make an enabling order in respect of the Disqualifying Offence provided it is also satisfied that the applicant meets the requirements of s 30(1A) of the Act. The Tribunal must not make an enabling order unless it is satisfied that a reasonable person would allow their child to have direct unsupervised contact with the applicant while engaged in child-related work (the “reasonable person” test), and satisfied that it is in the public interest to make the order (the “public interest” test). If the Tribunal makes an enabling order, it may also exercise its discretion to make an order requiring the Children’s Guardian to grant the applicant a clearance.

6. The applicant contended that he does not pose a risk to the safety of children and that he meets both the “reasonable person” and “public interest” tests.

7. The Children’s Guardian opposed the application.

8. Having considered all the evidence before it, the Tribunal is satisfied that the applicant has displaced the presumption that he poses a risk to the safety of children. Further, the Tribunal is satisfied that the “reasonable person” and “public interest” tests have both been met.

9. Accordingly, the Tribunal decided to grant the enabling order, and to order the Children’s Guardian to issue the applicant a clearance forthwith. The Tribunal’s reasoning is set out below.

Prohibition order

10. Due to the sensitive nature of these proceedings and to protect against the identity of an alleged victim being disclosed, an order was made on 23 January 2025 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. Accordingly, the pseudonym ‘GTN’ was used for the applicant’s name in these proceedings. Additionally, to protect the identity of any victim, geographic locations have not been disclosed.

Material and evidence before the Tribunal

11. In addition to his application for administrative review attaching a copy of the Refusal Decision, the following material was filed on behalf of the applicant:

1. a bundle of documents filed on 23 June 2025 including a letter from the applicant addressed to the Tribunal, four character references, medical certificates and a report by Tim Watson-Munro, Consultant Psychologist (marked for identification as “A1”); and

2. written submissions dated 15 July 2025 (not marked).

12. The following material was filed on behalf of the Children’s Guardian:

1. a bundle of evidence filed on 5 June 2025 (marked for identification as “R1”); and

2. written submissions dated 10 July 2025 (not marked).

The hearing

13. The applicant attended the hearing along with his wife. He did not give oral evidence and was not cross-examined.

14. Mr Watson-Munro was not available to be cross-examined on the day of the hearing and the Children’s Guardian did not object to Mr Watson-Munro’s report being accepted into evidence as an expert report.

Background to the application

15. The applicant is currently aged 35 and is married, with three children. From the age of 18 to 30 years of age, he worked in a private business alongside his father until his father passed away. He and his wife now own and run a service business.

16. On 4 and 5 March 2008, at the age of 18, the applicant committed the Disqualifying Offence which is described in more detail below.

17. On 12 November 2024, the applicant applied for a volunteer clearance, nominating “Clubs or other bodies providing services to children” as the child-related employment sector.

18. On 15 November 2024, the Children’s Guardian notified the applicant that his application for clearance was refused because he is a disqualified person under s 18(1) of the Act, having been convicted as an adult with an offence specified in Schedule 2 of the Act. We note that the applicant was not convicted, but was found guilty, of the Disqualifying Offence.

19. On 4 December 2024, the applicant filed an application seeking an enabling order from the Tribunal pursuant to s 28 of the Act.

20. The applicant is seeking a clearance to enable him to engage in volunteer activities at his children’s football club.

21. He also asserted that, as a result of the Disqualifying Offence, his employment prospects have been limited. He argued that, if granted a clearance, he may have access to service contracts with schools and other entities that require service providers to have clearances.

The disqualifying offence

22. The offending conduct arose from text messages exchanged with the victim on 4 and 5 March, 2008. At the time, the applicant was aged 18 and the victim was aged 13. They attended the same high school, socialised together and regularly communicated by text messages. On one occasion, they watched a movie together at the victim’s home, with her father’s permission, and she had attended the applicant’s 18^th birthday party.

23. On 4 March 2008, the applicant asked the victim to send a “hot” and “steamy” photo of herself to him. She complied with the request and took a naked photograph of herself and sent it to him. According to the Police Facts Sheet, the photograph depicted the victim, totally naked and standing front on, holding what was thought to be a mobile telephone.

24. On 5 March 2008, the text messages and photograph were seen by the victim’s father who reported the matter to the police. As a result of the information provided by the victim’s father to police, a provisional Apprehended Domestic Violence Order (ADVO) was applied for and granted. The victim participated in an electronically recorded interview, stating that she had sent the naked photo of herself to the applicant.

25. The following day, police attended the home address of the applicant and served the provisional ADVO upon him. Subsequently, on 27 March 2008, the applicant was arrested at his home address and was then conveyed to the local police station where he was charged with ‘Possess child pornography’ (Sequence 1) and ‘Incite person aged under 16 years to commit act of indecency’ (Sequence 2).

Local Court proceedings 4 March 2009

26. Both charges were heard and dismissed by the Local Court on 4 March 2009. The Magistrate was not persuaded that the photograph fell within the definition of child pornography and dismissed Sequence 1. His Honour also found that, while there was ‘inciting’ by the applicant, the act of sending a nude photograph was not an act of indecency, and Sequence 2 was also dismissed.

Appeals to the Supreme Court and NSW Court of Appeal

27. The Director of Public Prosecutions appealed the dismissal of the Disqualifying Offence to the Supreme Court, arguing that the Magistrate had failed to have regard to the surrounding circumstances, including the sexual nature of the text messages, the intention and purpose of the applicant, and the ages of the parties. The Supreme Court set aside the dismissal on 17 December 2009.

Appeal to the NSW Court of Appeal

28. The applicant’s appeal to the NSW Court of Appeal on 17 September 2010 was dismissed.

Local Court proceedings on 17 December 2010

29. The matter was remitted to the Local Court where the ‘Possess Child Pornography’ charge was withdrawn. The applicant pleaded guilty to Sequence 2. The only issue for determination was whether or not the inciting of the act concerned was indecent. When considering the messaging between the parties, his Honour found the applicant was not forceful or overly demanding but he wanted the photographs to be explicit and sexual. Whilst it was submitted that the applicant did not distribute the photograph, the potential for it to be distributed remained. Taking into account the relevant circumstances, his Honour was satisfied beyond reasonable doubt that the actions of the applicant in inciting the victim to send the nude photograph did amount to inciting an act of indecency.

30. His Honour found the applicant guilty of the Disqualifying Offence but did not proceed to conviction, and directed the applicant to enter into a good behaviour bond for 12 months.

Legislative framework and legal principles

Protective jurisdiction of the Act

31. The stated object of the Act is to protect children by requiring persons engaged in child-related work to have working with children check clearances:

3 Object of Act

The object of this Act is to protect children—

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

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

Paramount consideration in the operation of the Act

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

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

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

Definitions and meanings given to certain relevant terms

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

34. “Child-related work” is defined in s 6 of the Act as involving direct contact by a worker with a child or children and that contact is part of or more than incidental to the work.

35. There are two classes of clearance, a volunteer clearance which authorises workers to engage in unpaid child-related work, and a non-volunteer clearance which authorises workers to engage in paid and unpaid child-related work: s 12 of the Act.

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

37. The meaning of “risk to the safety of children” is defined in s 5B of the Act to mean a “real and appreciable risk to the safety of children.” The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]:

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

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

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

39. Notwithstanding the paramount consideration in s 4 of the Act, the jurisdiction of the Tribunal is protective, and not punitive, in nature: DAI v Children’s Guardian [2017] NSWCATAD 308 at [8] (DAI); AYU at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA B111, per Young JA at [61]. The object of the Act is not to impose additional punishment on a person such as the applicant, but to eliminate possible risks to children: CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU at [34].

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

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

Framework in the Act relating to disqualified persons

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

42. As previously noted, the applicant is a “disqualified person”, having been found guilty on 17 December 2010 of an offence specified in Schedule 2 of the Act, namely the offence of ‘Incite person under 16 years to commit act of indecency’ contrary to s 61N(1) of the Crimes Act 1900.

43. Where an applicant is a “disqualified person”, the Children’s Guardian must notify that person of the decision to refuse an application for clearance.

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

45. Under s 28(4) of the Act, the Children’s Guardian is to be a party to the proceedings.

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

47. Pursuant to s 28(6) of the Act, if the Tribunal makes an enabling order, the Tribunal may also order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

Obligation to fully disclose relevant matters to the Tribunal

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

Issue for the Tribunal’s determination

49. Section 28 of the Act does not specify the test to be applied in determining whether to make an enabling order. We have already noted that in cases where an enabling order is sought, s 28(7) of the Act provides that the Tribunal must presume (unless proven to the contrary) that the applicant poses a risk to the safety of children. The applicant therefore has the burden of satisfying the Tribunal that they do not pose a risk to the safety of children.

50. Relying upon the decision in EOL v Children’s Guardian [2021] NSWCATAD 146 at [18], the correct test for the Tribunal to consider is whether it is positively satisfied that the applicant does not pose a risk to the safety of children. In BKE at [25], the Supreme Court previously accepted that this approach is consistent with s 18(2) of the Act.

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

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

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

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

52. If positively satisfied that the applicant does not pose a risk to the safety of children, the Tribunal is empowered under s 28(1) of the Act to make an enabling order in respect of a specified offence.

Further considerations under s 30(1A) of the Act before making an order under Part 4 of the Act

53. The Tribunal is precluded from making an order under Part 4 of the Act unless both the tests in s 30(1A) are satisfied:

(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.

The “reasonable person” test

54. The “reasonable person” test requires the application of an objective standard based upon the views of the reasonable person. It assumes that the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children’s Guardian [2016] NSWCATAD 214 at [127]; CYY at [26]; PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [57].

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

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

56. The reasonable person approach taken in VQB was endorsed in NSW in CRG v Children’s Guardian [2017] NSWCATAD 295 at [85] and DAI at [90]. In DAI at [91], the Tribunal said:

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

57. As set out in the respondent’s written submissions, a clearance cannot be made subject to conditions. Accordingly, the “reasonable person” test requires that the reasonable person would permit direct, unsupervised contact of their child with the applicant in the course of any child-related work, and this includes not only the work for which the applicant is now trained or the work in which the applicant proposes to engage.

The “public interest” test

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

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

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

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

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

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

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

62. Accordingly, in proceedings under the Act, the public interest must be considered in light of the paramount consideration under s 4 of the Act, namely, to protect children from child abuse.

63. The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75]. The public interest is thus the interest of the public at large, and not the interest of a section of the public or an individual which do not overlap with the public interest: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 (Sinclair) per Barwick CJ at [480].

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

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

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

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

Consideration

66. Counsel for the applicant submitted that the presumption in s 28(7) of the Act has been rebutted, and that the applicant does not pose a risk to the safety of children. Counsel for the applicant also submitted that the applicant has matured in the 17 years since his offending and has learned from his past experience. Further, Counsel submitted that the applicant’s risk of reoffending is low, on the basis of the psychological evidence that has been put before the Tribunal.

67. The Children’s Guardian maintained its opposition to an enabling order, arguing that the applicant had failed to articulate any insight into the harm his conduct caused to the victim, and the risk that engaging in such conduct posed to children. Further, the Children’s Guardian submitted that a reasonable person would not allow the applicant to have unsupervised access to their children in a work setting, and that granting the clearance would not be in the public interest.

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

68. In determining the application, we are obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the Act.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar: s 30(1)(a)

69. The offence of ‘Incite an act of indecency by a person under 16 years’ is sexual in nature and is therefore serious.

70. At the time the applicant was arrested and charged, s 61N(1) of the Crimes Act 1900 provided:

Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years.

71. As submitted by the Children’s Guardian, at the time of the offence, the applicant was no longer at school and was working, and there is no evidence that the victim would have sent the nude photographs without the applicant’s request. There was potential for the applicant to distribute the victim’s photograph which could have resulted in far-reaching harmful consequences for her. The applicant also sent the victim text messages of a sexual nature and an image of his naked upper body.

72. Counsel for the applicant submitted that the charge covers a broad range of conduct that can rise to the level where no sentence other than full time custody is appropriate. However, as the facts of this case disclose, the applicant was not convicted and was directed to enter into a 12 month good behaviour bond.

73. We agree with Counsel’s submissions that this case lies at the lowest end of the scale of seriousness for the offence. Further, there were no threats, coercion or violence associated with the applican’s conduct, and the image was not disseminated.

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

74. The Disqualifying Offence occurred more than 17 years ago.

75. Since the Disqualifying Offence, the applicant’s conduct has not been the subject of any further complaints or criminal charges.

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

76. The applicant was aged 18 years and two months at the time of the offence.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim: s 30(1)(d)

77. The victim was 13 and a half years old at the time of the offence.

78. There is no evidence of any particular vulnerability in the victim, and the applicant was not in a position of authority over her. However, we do accept that the probable maturity difference between the applicant and the victim was a contributing factor pointing to the inappropriateness of the conduct. The victim, as a 13 year old schoolgirl, may have been susceptible to the influence of the applicant as an older acquaintance who had left school and was working.

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

79. The difference in age between the applicant and the victim was four and a half years.

80. The applicant and the victim knew each other at high school and had socialised together, including at the victim’s home with her father’s knowledge and consent.

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

81. The applicant knew that the victim was under 16 years of age.

The person’s present age: s 30(1)(g)

82. The applicant is currently 35 years of age.

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

83. The seriousness of the applicant’s criminal history was discussed above in relation to ss 30(1)(a) and 30(1)(b) of the Act.

84. There have been no further criminal charges or allegations laid against the applicant.

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

85. If the applicant were to again engage in the type of conduct which led to the Disqualifying Offence, a child could suffer significant physical, emotional and psychological harm.

86. The applicant provided a medical certificate confirming that he had not been seen by his doctor for mental health related issues and had not been prescribed any medications for his mental health.

87. The applicant also provided a report from Tim Watson-Munro, Consultant Psychologist, dated 12 March 2025 who found nothing to indicate any psychopathology. Mr Watson-Munro stated that psychometric testing failed to reveal any symptoms of depression and, more specifically, the applicant’s results on the SVR-20 (a tool used to evaluate a person’s risk of sexual violence) were unremarkable. Overall, he opined that the applicant’s risk of reoffending is low, and concluded that there is nothing to contraindicate the applicant being granted a clearance:

“Taking static and dynamic factors of his life into account, in my respectful view, there is nothing in the present to contraindicate [the applicant] being granted a Working with Children Clearance. I say this advisedly, in the context of his maturation over the past 15 years, the support of his wife, family and significant others in his life, an absence of any illicit drug use or alcohol abuse, his expressions of remorse and his insight to the dynamics surrounding his offending at the time. In general terms it is clear that he has matured and learnt from his past experience, which is well expressed in his letter of apology. Taking these factors into account, I believe the risk of reoffending is low. This is the lowest risk of the risk offending categories, bearing in mind that he has one prior exposure to the criminal justice system, some 15 years ago.”

88. We have given a moderately strong amount of weight to Mr Watson-Munro’s opinion.

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

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

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

90. In support of his application, the applicant provided a letter of personal apology to the Tribunal, the report from Tim Watson-Munro and four character references.

91. In his letter to the Tribunal, the applicant expressed deep remorse for his offending conduct. We do not accept the submission made on behalf of the Children’s Guardian that the applicant failed to articulate any insight into the harm his conduct caused to the victim. With reference to his own daughter (who is now close in age to the age of the victim at the time of the offence), the applicant demonstrated insight into the impact of his conduct upon the victim. His letter specifically referred to his contrition for the consequences of his actions upon others. In our view, given the contextual reference to his own daughter, it is reasonable to infer that the applicant’s reference to “others” included a reference to the victim:

“Looking back now that my daughter is almost the same age as [the victim] was at the time, I cannot express enough how deeply sorry I am for my actions and the consequences they brought upon others and myself.”

92. In our assessment, the applicant understands the seriousness of the offence and has accepted full responsibility for his actions. He expressed humility and gratitude for the opportunity to articulate his remorse and expressed his intentions to build a better future for his family and to make a positive contribution to the community.

93. The applicant’s wife provided a personal letter in support of her husband. She knew him from when they were both 18 years of age. She said that her husband had been honest and transparent in his disclosure of the Disqualifying Offence to her, and had always expressed genuine remorse for his actions. She also said that the applicant had taken every step to reflect on his actions and their consequences, and that he was committed to making amends.

94. A personal character reference from his brother-in-law attests to the applicant’s good character and the remorse he has expressed for his actions. This referee has known the applicant since 2006, before the time of the offence, and has previously worked with him and lived with him for a time. He described the applicant as a person who is dedicated to his children whom he always puts first. He said that the Disqualifying Offence is not reflective of the applicant’s true character.

95. Another personal character reference was provided by a friend, CB, who has known the applicant for 12 years. This referee said that he knew about the offence and did not think it was a true reflection of the applicant’s character. CB also said that the applicant deeply regrets his conduct, and is a person of good moral character. CB said that he is confident that the applicant will continue to contribute positively to society.

96. Another referee, GA, has known the applicant for more than 15 years. GA said that she knew about the Disqualifying Offence but nonetheless supports the application for an enabling order. She described the applicant as having a strong moral character and being a dedicated father, striving to be a positive role model in his children’s lives. GA attested to the applicant’s deep remorse for his offence and said that the applicant recognises the impact of his actions. In GA’s opinion, the applicant has learned from his experience and will make meaningful contributions to society in the future.

97. All the referees have knowledge of the applicant’s criminal history, without speaking in any great detail about the circumstances surrounding the Disqualifying Offence. All the referees attest to the applicant’s sincere remorse and his desire to be a positive role model for his children and make a valuable contribution to community life. On balance, we have given a moderate amount of weight to these references when evaluating whether the applicant poses a risk to the safety of children, and when considering the “reasonable person” and “public interest” tests.

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

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

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

99. Relevant submissions by the Children’s Guardian have been considered.

Assessment as to whether the applicant is a risk to the safety of children

100. We are positively satisfied that the applicant has rebutted the presumption in s 28(7) of the Act and does not pose a real and appreciable risk to the safety of children for the following reasons:

1. the Disqualifying Offence was a one-off occurrence, with the applicant having no prior, and no subsequent, criminal history;

2. the Disqualifying Offence was at the lower end of seriousness, with no conviction recorded, and the applicant adhered to the conditions of his 12 month good behaviour bond (now expired);

3. more than 17 years have elapsed since the time of the offence, with no other criminal conduct by the applicant and no charges or allegations made against him;

4. at the time of the offence, the applicant had only just turned 18, and was relatively immature and naïve. He is now 35, more mature and has responsibilities as a husband and father;

5. the applicant has expressed genuine, deep remorse for his offending conduct;

6. the applicant has accepted responsibility for his offending conduct;

7. the applicant has expressed insight into his conduct and insight into the impact of his conduct upon the victim; and

8. in the opinion of the expert Consultant Psychologist, the risk of the applicant reoffending is low (noting that this is the lowest of the risk offending categories).

Reasonable person and public interest tests: s 30(1A) of the Act

101. Before making an enabling order and exercising its discretion to order the Children’s Guardian to grant the applicant a clearance, the Tribunal must be satisfied that the applicant meets the tests in s 30(1A) of the Act.

“Reasonable person” test

102. Under s 30(1A)(a) of the Act, the Tribunal must be satisfied that a reasonable person would permit their child to have direct, unsupervised contact with the applicant in the course of any child-related work.

103. A reasonable person would be concerned by the Disqualifying Offence since it was an offence of a sexual nature and the victim was vulnerable due to her age.

104. However, a reasonable person’s concern about the nature of the Disqualifying Offence would be counter-balanced by a number of factors including:

1. that in the past 17 years the applicant has not been the subject of any complaints, charges or convictions;

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

3. that the applicant’s brother-in-law often leaves his two children with the applicant and trusts the applicant to look after them.

105. On the evidence before us, we are satisfied that a reasonable person would allow his or her child to have direct, unsupervised contact with the applicant while he is engaged in child-related work.

“Public interest” test

106. Under s 30(1A)(b) of the Act, the Tribunal must also be satisfied that it is in the public interest for the applicant to be given a clearance.

107. The applicant’s personal letter to the Tribunal articulated his desire to give back to the community through volunteer activities associated with his children’s football club. In particular, the applicant has aspirations to make a positive contribution to the growth and well-being of young football players in the community, and to be a role model for his children.

108. Consistent with the reasoning in ZZ, the applicant’s private interest to be involved in volunteering for community sport programs is a factor to be taken into consideration where a community benefit is also derived. There is no question that the engagement of young people in community sport yields positive health and well-being benefits for the community and is in the public interest.

109. The applicant currently owns and runs a service business with his wife and this enables them to provide financially for their family. If granted an enabling order and clearance, the applicant may have access to a more reliable and sustainable source of income by providing his services to schools (and other entities where children may be present such as daycare centres, sporting clubs, dance studios and churches), thereby reducing any potential risk that the applicant may require social security benefits in the future, to care for himself and his family. Clearly, it is in the public interest that the applicant has a viable and sustainable means by which he can independently provide for his family’s financial needs.

110. There are no clear public interest considerations to suggest that it is not in the public interest for this applicant to be granted a clearance.

111. We are thus satisfied that it is in the public interest to make the enabling order and for the Children’s Guardian to issue the applicant with a clearance.

ORDERS

112. Accordingly, we make the following orders:

1. Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purpose of that Act in respect of an offence contrary to s 61N(1) of the Crimes Act 1900 of which he was found guilty on 17 December 2010, but without proceeding to a conviction.

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

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

15 August 2025 - Identifiers removed from Paragraph [22].

Decision last updated: 15 August 2025