GVD v Children's Guardian

[2025] NSWCATAD 251

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GVD v Children’s Guardian [2025] NSWCATAD 251

Hearing dates:

4 September 2025

Date of orders:

3 October 2025

Decision date:

03 October 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member
M Bolt, General Member

Decision:

(1) The determination of the Children’s Guardian dated 4 December 2024 to refuse to grant the applicant a working with children check clearance on the grounds that he is a disqualified person under s 18(1)(a) of the Child Protection (Working with Children) Act 2012 (NSW), is affirmed.

(2) The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – Application for review under s 28(1) 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)

Child Protection (Working with Children) Amendment Act 2022 (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

FDS v Children’s Guardian [2022] NSWCATAD 374

FVC v Childen’s Guardian [2023] NSWCATAD 129

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:

GVD (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (self-represented)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2025/00001307

Publication restriction:

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

REASONS FOR DECISION

Introduction and overview

1. In this case, the applicant asked the Tribunal to administratively review the respondent’s determination dated 4 December 2024 (“the Determination”) to refuse to grant a Working With Children Check Clearance (“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 WWC Act”).

2. The applicant is a disqualified person, having been found guilty on 19 August 2024 of an offence specified in Schedule 2 of the WWC Act, namely the offence of ‘sexually touch another person without consent’, contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (“the Disqualifying Offence”). The applicant pleaded guilty and was convicted and directed to enter into a Community Correction Order for 12 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3. In his application for a Clearance, the applicant had nominated “Early Education and Child Care” as the child related employment sector. He required a Clearance in order to continue his studies at an Australian university (“the University”) by meeting the requirements for practical placement, a component of his Graduate Diploma in Early Childhood Education.

4. Pursuant to s 28 of the WWC 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.

5. 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 WWC Act.

6. 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 WWC 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.

7. The applicant contended that he does not pose a risk to the safety of children and that he had suffered significant hardship caused by the refusal of his application for Clearance. His evidence was that he did not intentionally engage in the offending conduct and that, at the time, he was affected by alcohol. The applicant argued that he had complied with the Community Correction Order and asserted that he had rehabilitated himself and wanted to be a better and more responsible person in the future.

8. The Children’s Guardian opposed the application, arguing that the applicant engaged in deliberate, repeated acts of non-consensual touching against the victim without her knowledge and consent. Further, it was submitted that the applicant had not accepted responsibility for his offending conduct and that he had not demonstrated any insight into the seriousness of his conduct or the impact it had upon the victim. The Children’s Guardian submitted that the applicant poses a risk to the safety of children, having regard to the sexual nature and recency of the Disqualifying Offence and the applicant’s failure to engage in genuine, proactive steps towards rehabilitation.

9. Having considered all the evidence before it, the Tribunal is satisfied that the applicant has not displaced the presumption in s 28(7) of the WWC Act and is satisfied that he poses a risk to the safety of children.

10. Accordingly, the Tribunal decided to affirm the Children’s Guardian’s Determination and dismissed the application. The Tribunal’s reasoning is set out below.

Non-publication order

11. 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 4 September 2025 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the 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.

Leave to attend the hearing via audio-visual link

12. The applicant did not attend the hearing in person, in accordance with the notice of listing. After making due enquiries, it became evident that the applicant was located in an area that was not in close proximity to the Tribunal. Leave was therefore granted, permitting the applicant to attend via an audio-visual link. He was self-represented.

Application for stay dismissed

13. For completeness, the Tribunal noted that the applicant had also applied for a stay of the Children’s Guardian’s Determination to refuse the Clearance, pending the hearing of the substantive application for an enabling order.

14. The stay application was dismissed since the Tribunal does not have jurisdiction to stay the operation of the Determination. Under the Child Protection (Working with Children) Amendment Act 2022 (NSW) (“the Amending Act”), s 30(2) of the WWC Act was amended, the effect of which was to deprive the Tribunal of jurisdiction to grant stays in relation to applications brought under s 28 of the WWC Act.

15. In FVC v Childen’s Guardian [2023] NSWCATAD 129, Senior Member Lucy held that the Tribunal does not have jurisdiction to grant an interim order because s 30(2) “no longer provides the Tribunal with a power to stay the operation of a determination by the Children’s Guardian on an application under section 28 of the Act”. Dr Lucy further explained that an application under s 28 of the WWC Act is not a general application “for the review or other re-examination of a decision made by an external decision-maker” within the meaning of s 43(1)(a) of the CAT Act. In exercising its powers under s 28, the Tribunal is not reviewing a decision made by the Children’s Guardian. Rather, on the application of a disqualified person, it exercises the powers conferred on it under that provision.

16. Accordingly, the applicant’s request for a stay of the Determination was dismissed by Order made on 21 January 2025.

Material and evidence before the Tribunal

17. 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 Tax Invoice dated 11 December 2024 issued by the University in which the applicant is enrolled to undertake his Diploma course (marked for identification as “A1”);

2. a Statutory Declaration dated 25 June 2025 (marked for identification as “A2”); and

3. written submissions dated 10 January 2025 (not marked).

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

1. a bundle of evidence filed on 31 January 2025 (marked for identification as “R1”);

2. a second bundle of evidence filed on 21 May 2025 (marked for identification as “R2”);

3. a third bundle of evidence filed on 23 July 2025 (marked for identification as “R3”); and

4. written submissions dated 29 August 2025 (not marked).

Background to the application

19. The applicant is currently aged 27, and is single. He is of Indian nationality and has one brother. His parents reside in India. He arrived in Australia in December 2016 under a Student Visa. He successfully completed an Advanced Diploma of Business and a Bachelor of Business.

20. He then enrolled in a University course offering a Graduate Diploma in Early Childhood Education which, if successfully completed, allows graduates of degree programs to become early childhood teachers. One of the components of the Graduate Diploma requires students to be placed in an early childhood setting such as a preschool and infant/toddler centres, in order to obtain experience through hands-on work with children which is supervised.

21. Apart from doing some part-time work in supermarket and fast food industries, the applicant has been a student since arriving in Australia, and is supported by his parents. His oral testimony to the Tribunal is that he was inspired by his mother who was a teacher of children under the age of around 8 in a small village in India. He said that he likes to be around children and wanted to change the direction of his career by enrolling in the Graduate Diploma course.

22. The Disqualifying Offence occurred on 19 August 2023 and is discussed in more detail below. The Community Correction Order expired on 19 August 2024, without any breach of its terms.

23. The applicant’s evidence is that he enrolled in the Graduate Diploma course some time in 2024 and that he has paid some fees, that appear to be around one third of the overall fee. He has successfully completed two subjects. However, without the Clearance, he is unable to satisfy the requirements of the practical placement, and cannot continue with the course.

24. He applied for a Clearance on 28 November 2024. The Children’s Guardian advised him on 4 December 2024 that because he is a disqualified person, having been convicted (as an adult) of an offence specified in Schedule 2 of the Act, a Clearance could not be granted.

25. The applicant filed his application for administrative review on 30 December 2024.

The Disqualifying Offence

26. The Disqualifying Offence consisted of one count of sexually touching another person without consent under s 61KC of the Crimes Act 1900 (NSW) which provides that:

61 KC 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 –

1. Sexually touches the complainant, or

2. Incites the complainant to sexually touch the accused person, or

3. Incites a third person to sexually touch the complainant, or

4. Incites the complainant to sexually touch a third person,

is guilty of an offence.”

27. The circumstances of the Disqualifying Offence are set out in two NSW Police Facts Sheets, one comprising 5 pages and another, comprising 8 pages.

28. On 19 August 2023, the applicant and the victim separately attended a music event on board a 38 metre passenger cruise ship on Sydney Harbour. The offending conduct occurred at around 10.35 pm and was captured on CCTV. The CCTV footage was played during the hearing. The offending conduct comprising the Disqualifying Offence was observed by the Tribunal. Additionally, the Tribunal observed the applicant engaging in other sexual touching of the victim which is described in the 8-page Police Facts Sheet and is addressed under the heading “Consideration” in these Reasons.

29. The victim was seen dancing with her friends in a small circle on the main dance floor on the middle level of the vessel. The applicant stood behind the victim, approximately 10-20cm away. Extracting from the 5-page Facts Sheet, the following is a short summary of the offending conduct:

“About 10.30pm she described facing her friends when she suddenly felt something brush between her legs. She described the touch as slow and soft. She indicated that before she could think about what had happened, she felt it happen again, this time with more force. She stated she believed it was a hand because of the shapes of the fingers. She indicated that the hand went between her legs in a sidewards motion and brushed the outside of her pants where her bottom is. She stated the hand was quickly removed from between her legs, with the whole incident lasting seconds.

The victim stated that after the 2^nd time the hand touched her, she realised what had happened and was shocked and immediately turned around. When she turned around, she observed the Accused standing less than 10 centimetres away from her, standing side on. She stated she had not seen or talked to this person before and did not know who he was.”

30. The victim confronted the applicant and said: “What are you doing?” The applicant said “I’m sorry, I’m sorry”. The victim described the applicant as lifting his hands up in front of him and taking a few steps backwards. The victim then realised that the applicant had touched her between her legs. A friend of the victim confronted the applicant and pushed him backwards away from the victim.

31. The victim and her friends then approached Security on board the vessel and confirmed she wished to report the matter to NSW Police.

32. At around 12.20am on 20 August 2023, the applicant was arrested and conveyed to a Police station where he participated in an electronically recorded interview. During the interview, the applicant repeatedly denied the allegation. He also occasionally said he couldn’t remember and also said that he did not intentionally touch the victim.

Local Court proceedings

33. In Local Court proceedings on 19 August 2024, the applicant was convicted of the Disqualifying Offence and was sentenced to a community correction order for a period of 12 months commencing on 19 August 2024 and expiring on 19 August 2025.

Legislative framework and legal principles

Protective jurisdiction of the Act

34. The stated object of the WWC 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 WWC Act

35. In exercising its functions under the WWC 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

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

37. “Child-related work” is defined in s 6 of the WWC 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.

38. Section 12 of the WWC Act provides for 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.

39. The term “child abuse” as referred to in s 4 of the WWC 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”.

40. The meaning of “risk to the safety of children” is defined in s 5B of the WWC 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’…”

41. 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

42. 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 WWC 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].

42. 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 WWC Act relating to disqualified persons

44. Under s 18(1) of the WWC 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.

45. As previously noted, the applicant is a “disqualified person”, having been found guilty on 19 August 2024 of an offence specified in Schedule 2 of the WWC Act, namely the offence of ‘sexually touch another person without consent” contrary to s 61KC(a) of the Crimes Act 1900.

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

47. Pursuant to s 28(1) of the WWC 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.

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

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

50. Pursuant to s 28(6) of the WWC 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

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

Issue for the Tribunal’s determination

52. Section 28 of the WWC 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 WWC 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.

53. 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. The risk must be real and appreciable: FDS v Children’s Guardian [2022] NSWCATAD 374 at [20].

The approach to fact finding and the assessment of risk

54. In recognition of the protective jurisdiction of the Act and the paramount consideration being the safety, welfare and well-being of children, the Tribunal is bound to follow the decision in BKE at [33] when assessing risk:

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

55. The approach to fact finding as explained in BKE at [33] has been approved by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 (Tilley) at [34]-[45] and in CXZ per Simpson AJA at [57]:

“The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. [emphasis in original] 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.”

56. Thus, relying upon the analysis in CXZ at [51], many cases will not lend themselves to definitive factual determination. Where an allegation is neither “well founded” nor “groundless”, the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct which is the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].

57. A positive finding by the Tribunal that alleged conduct has taken place will generally be determinative of an application: Office of the Children’s Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[15], per Justice Harrison:

“The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has “no hesitation in rejecting the allegation as groundless”. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a “decisive impact” on the outcome of the application.

The second proposition is that, even if no such “positive finding” can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is “groundless”.”

58. In determining the application, the Tribunal is required to consider “the totality of the evidence”: BKE at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the “cumulative effect” of the matters before it: CYY at [69]-[71].

Civil standard of proof

59. The standard to which the Tribunal must be satisfied before making a positive finding in relation to an allegation is the civil standard, that is, on the balance of probabilities, and not the criminal standard: CFW at [14]-[17], subject to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). The Briginshaw principle can broadly be described as a standard of satisfaction to be reached where serious allegations are concerned. Put simply, serious allegations with serious consequences require more compelling evidence for the decision maker to reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist.

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

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

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

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

61. 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 WWC Act to make an enabling order in respect of a specified offence. However, the tests in s 30(1A) of the Act (discussed below) must first both be met before an enabling order can be made.

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

62. The Tribunal is precluded from making an order under Part 4 of the WWC 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

63. 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].

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

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

65. The reasonable person approach taken in VQB was endorsed in NSW in CRG 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.”

66. 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

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

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

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

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

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

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

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

71. Accordingly, in proceedings under the WWC 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.

72. 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].

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

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

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

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

Consideration

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

The Disqualifying Offence

76. The applicant sexually touched the victim between her legs, moving his hands into her anal and vaginal areas. At first, the touching was done in a slow, soft brushing motion and then it became a more deliberate and forceful motion. He was charged with two counts of “sexually touch another person without consent”, contrary to s 61KC(a) of the Crimes Act 1900 (NSW). The first count (Sequence 1) charged the applicant with “intermittently using his right hand and fingers to physically touch the buttocks and anal area of the victim without consent”. The second count (Sequence 2) charged the applicant with “using his right hand and fingers to physically touch the anal and vaginal area of the victim without consent”. Sequence 2 was withdrawn on the basis that a plea of guilty was entered with respect to Sequence 1. The applicant was convicted and was directed to enter into a Community Correction Order for 12 months commencing on 19 August 2024.

77. The Disqualifying Offence was serious in nature, involving highly sexual conduct without consent which, when realised by the victim, caused her to be “nervous and disgusted” by what the applicant had done.

78. The Disqualifying Offence is made more serious by the fact that it occurred in public, in an environment where the victim should have been able to feel safe.

79. The Local Court Magistrate described the behaviour as a “disgusting thing to do” with respect to how women are treated, and that it represented “absolutely entitled thinking”. Her honour stated: “to stick your hand between some woman’s legs that you don’t even know, while she’s dancing and having a good time is an absolutely disgusting thing to do”.

The additional sexual touching without consent

80. The CCTV footage of the party onboard the vessel was played during the hearing, showing the applicant’s behaviour on the dance floor. The applicant was seen observing the victim and her friends for several minutes. In an extract from the 8-page Police Facts Sheet, the applicant is noted to have touched the victim approximately 15 times over a relatively prolonged period of time:

“On reviewing the CCTV, the Accused physically touched the victim approximately 15 times without her consent. The physical sexual touching of the victim by the Accused went on intermittently for approximately 4 minutes without her knowledge. At no time did the victim give consent to the Accused to physically touch her in any way.”

81. Upon realising what had occurred, the victim was described as quickly reacting with a shock, and she immediately turned around and confronted the applicant.

The applicant’s evidence

82. The applicant pleaded guilty to the Disqualifying Offence in the Local Court proceedings in exchange for withdrawal of Sequence 2. However, in his interview with Police immediately after the incident, he repeatedly denied that he had touched the applicant as alleged. When asked about his actions of touching the victim, he said “Ah I have no idea”, and “I don’t know about that. Can’t say anything” and “whatever she said about the touching, I don’t know”. When asked about saying to the victim “I’m sorry. I’m sorry”, the applicant explained that if he touched a person by mistake or accident, it was his manners to say “sorry” in respect for the person. The applicant then changed his response to questions about whether he had touched the victim by saying “not intentionally” and also “No, I don’t remember”.

82. Later in the interview, the applicant said some confusing things, asserting that he was being honest but then suggesting that maybe he was wrong, maybe he was right, and that the victim’s story was her story, and that the Police would do their investigation. Again, he denied the allegation, saying: “Just because I know I’m honest. I didn’t do anything wrong”. He said that if he had done something wrong or was scared, he would definitely call a lawyer.

83. Our assessment of the applicant’s interview is that he feigned having no knowledge about the allegations.

84. In his statutory declaration, the applicant said he had “unintentionally” crossed a “boundary of personal space” due to being in an impaired state because of alcohol, and that he did not intend to cause harm:

“During the event, while dancing near a lady, I unintentionally crossed a boundary of personal space I did not intend to cause any harm or discomfort, but due to my impaired state, I failed to fully recognise the impact my actions had on the lady who was dancing near me.”

86. Also in his statutory declaration, the applicant confirmed that he had answered questions asked of him truthfully:

“… and when the police arrived, I was taken into custody and transported to the police station for further questioning. I was held in custody for few hours, during which I cooperated with the authorities and answered their questions truthfully.”

87. The applicant’s declaration said that he fully acknowledged the “mistake” he had made and the harm that it “may” have caused.

88. When giving his oral evidence to the Tribunal, the applicant submitted that if the case was regarded as serious, he would have been convicted of both Sequence 1 and Sequence 2. This suggests that the applicant did not understand the basis on which Sequence 2 was withdrawn, namely, that he pleaded guilty to Sequence 1, and he has wrongly interpreted the effect of the plea that was entered. It also demonstrates that he continues to fail to acknowledge the seriousness of his sexual offending.

89. The applicant also asserted that the victim was not ready to do anything (in response to his actions), but that her friend had caused her to make a complaint against him. When giving his closing oral submissions, the applicant again insisted that he did not do anything intentionally, and that he was drunk at the time, with impaired judgment.

Tribunal’s assessment

90. With respect to the Disqualifying Offence, it is not necessary to make a finding on the balance of probabilities as to whether the conduct occurred. In light of his conviction, and having regard to the CCTV footage which clearly depicts the applicant’s unlawful conduct, there is no doubt that the incident took place as alleged.

91. With respect to the additional sexual touching, having seen the CCTV footage, we find there is no doubt that the additional sexual touching of the victim occurred without her consent. We also find that the applicant’s conduct was deliberate and not unintentional. Indeed, aspects of his behaviour when observing the victim and her friends appear to be predatory. The applicant then took advantage of the fact that the victim was initially unaware of his actions and so he continued to sexually touch her without her knowledge. He did so, under cover of a crowded dance floor which may have made detection more difficult. When considered in this context, the conduct is regarded even more seriously.

92. Having regard to the inconsistency of some of his statements to this Tribunal (both in writing and made orally), we can place little reliance upon the applicant’s credibility. We do not accept his statutory declaration evidence that he had “unintentionally crossed a boundary of personal space”. This statement, together with the applicant’s oral submissions and testimony demonstrate that he has not accepted the serious nature of his offending and has sought to minimise his behaviour. He also sought to deflect blame onto the victim’s friend for having been charged. Overall, his submissions and evidence demonstrate that he has no remorse for the victim, and any regret he holds with respect to his actions is limited to the consequences that have resulted for himself and his proposed study plans.

93. In assessing whether he poses a risk to the safety of children, we have placed a substantial amount of weight on the seriousness of his repeated and deliberate sexual offending. Equally, we have placed a considerable amount of weight on the applicant’s attempts to minimise his conduct, his failure to recognise the gravity of his conduct, his failure to take full responsibility for his actions and his lack of insight into his actions and the impact they had on the victim.

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

94. The Disqualifying Offence occurred two years ago, on 19 August 2023.

95. The applicant was sentenced to a Community Correction Order commencing 19 August 2024 and was subject to that order until very recently, 19 August 2025. There is no evidence to suggest that he did not comply with the order.

96. 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)

97. The applicant was aged 25 years at the time of the Disqualifying Offence.

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

98. The victim was aged 27 at the time of the Disqualifying Offence.

99. The victim was vulnerable because she was in a setting in which she could reasonably have expected to be safe, with other patrons and security personnel onboard. Her vulnerability was increased because she had consumed alcohol. The applicant appears to have taken advantage of the crowded dance floor where his furtive conduct might be undetected, to sexually touch the victim without her being aware of his actions.

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

100. The victim is around two years older than the applicant and they were unknown to each other.

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

101. The victim was not a child.

The person’s present age: s 30(1)(g)

102. The applicant is currently 27 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)

103. The seriousness of the applicant’s criminal history was considered above in relation to ss 30(1)(a) of the WWC Act. His conduct since the Disqualifying Offence was considered in relation to 30(1)(b) of the WWC Act.

104. There have been no further criminal charges or allegations laid against the applicant since the Disqualifying Offence.

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)

105. The applicant did not submit any expert psychological or medical evidence about his risk to the safety of children. Whilst it is not a mandatory requirement for such evidence to be made available, in the circumstances of this case, it is a matter that we have taken into account when assessing whether the applicant has rebutted the presumption in s 28(7) of the WWC Act.

106. The applicant did provide a statutory declaration setting out his account of what occurred on the vessel, the consequences of the incident and his asserted remorse and commitment to working towards being a better and more responsible individual in the future.

107. He asserted that the victim forgave him after he apologised to her. However, there is no evidence before the Tribunal to corroborate that assertion and, in any event, forgiveness on the part of the victim is not a relevant consideration when assessing the applicant’s risk to the safety of children. A sincere apology by the applicant, on the other hand, may reflect a genuine expression of remorse, which, in our view, did not occur.

108. Also in his statutory declaration, the applicant said he fully acknowledged the “mistake” he had made and the harm it “may” have caused. In our view, the use of the word “mistake” is an attempt to minimise the seriousness of his sexual offending. We note that the harm caused to the victim was real and evident in her reaction when she realised she had been touched inappropriately. She was shocked, and then felt nervous and disgusted. We are therefore not persuaded that the applicant’s acknowledgment is an honest or sincere expression of remorse.

109. The applicant’s written submissions refer to the Disqualifying Offence as “a past offence” and “a mistake”. As stated previously, this language attempts to minimise the offending conduct which suggests the applicant has not fully accepted, or reflected upon, the seriousness of his actions.

110. He submitted that he has undertaken rehabilitation, but did not provide any evidence in support of that assertion. He appears to equate rehabilitation with compliance with the Community Correction Order. We acknowledge that the applicant has complied with requirements of the order and presented himself to Police as required. However, there is no evidence that he has undertaken any courses to understand issues in relation to sexual violence or to educate himself on the issue of consent. There is no evidence before the Tribunal that the applicant has engaged with a qualified psychologist to reflect upon his conduct or better understand societal norms.

111. His submissions focused on the consequences of the Disqualifying Offence for himself. In particular, he asserted that the Determination has had a significant impact on his life, causing him considerable stress and anxiety, and that he suffered from depression due to the overwhelming pressure of his situation. We accept that the applicant’s arrest and interview with the NSW Police, followed by being charged with the Disqualifying Offence and undergoing the criminal proceedings in the Local Court caused him stress and anxiety and this may be a powerful protective factor against the likelihood of him offending again. We also accept that his inability to proceed with a practical placement in connection with his Graduate Diploma has contributed to his stress. However, no objective medical or psychological evidence is before the Tribunal to support the applicant’s assertions.

112. The applicant has aspirations to work as an educator with young children which is his stated reason for undertaking the Graduate Diploma. Young children are vulnerable by virtue of their age and reliance upon educators in childcare for their safety and protection. Under cross-examination, when asked about what he had learned in his Graduate Diploma, the applicant appeared to have limited knowledge of the curriculum and gave a vague description of learning about how to communicate with parents and how to engage in play with children. He gave no indication that he had learned about being protective towards children. Noting the paramount consideration in the operation of the WWC Act, and having regard to the sexual nature of the applicant’s offending, we have concerns that the applicant remains a risk to the safety of children, in circumstances where he has not demonstrated genuine remorse and has not provided evidence that he has taken proactive and effective steps towards his rehabilitation.

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

113. The applicant was sentenced to a Community Correction Order commencing on 19 August 2024 for 12 months, expiring around two weeks before the Tribunal hearing. 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)

114. In support of his application, the applicant provided written submissions (although these were prepared primarily in connection with his application for a stay of the Children’s Guardian’s Determination), a statutory declaration and a tax invoice from the University evidencing payment of some of the fees for his Graduate Diploma course. The matters of relevance in the written submissions and statutory declaration have already been discussed above in considering the likelihood of the applicant repeating his offending conduct (under s 30(1)(i) of the WWC Act).

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

115. The Tribunal notes that there is no other relevant information in relation to the applicant obtained in accordance with s 36A of the WWC 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)

116. The Children’s Guardian noted that the applicant’s written evidence was that he had found the incident and its aftermath emotionally and mentally challenging and that he suffered depression as a result. However, no medical evidence was before the Tribunal with respect to those assertions.

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

117. On balance, having regard to the totality of the evidence, we find that the applicant has not rebutted the presumption in s 28(7) of the WWC Act. In our view, the applicant poses a real and appreciable risk to the safety of children for the following reasons:

1. the Disqualifying Offence and the applicant’s additional repeated sexual touching of the victim without her knowledge and consent are serious offences, being deliberate actions that were highly sexual in nature and non-consensual, and they were conducted in public;

2. the Disqualifying Offence and the applicant’s additional sexual touching of the victim without consent occurred very recently;

3. the Disqualifying Offence and the applicant’s additional sexual touching of the victim were opportunistic although the applicant’s overall conduct demonstrated a predatory intent;

4. the community correction order only expired in very recent times;

5. the applicant has not demonstrated genuine remorse for his conduct;

6. the applicant has not accepted full responsibility for his conduct;

7. there is no evidence before the Tribunal that suggests the applicant has reflected upon his conduct or taken pro-active steps to educate himself on issues of consent or sexual violence;

8. in light of the above, and in the absence of an expert psychological opinion as to the applicant’s risk of recidivism, we have a concern that the applicant has not genuinely reflected on his conduct and therefore has little insight into the seriousness of his offending or its impact upon the victim;

9. apart from his own assurances that he has learned from his experience and is committed to never offending again, there is no objective evidence of his rehabilitation.

Conclusion

118. On balance, the Tribunal is satisfied on the evidence before it that the applicant has not displaced the presumption in s 28(7) of the WWC Act and that he poses a real and appreciable risk to the safety of children.

119. In light of the conclusion reached, it is not necessary to consider the reasonable person and public interest tests in ss 30(1A)(a) and 30(1A)(b) of the Act.

ORDERS

120. Accordingly, we make the following orders:

1. The determination of the Children’s Guardian dated 4 December 2024 to refuse to grant the applicant a working with children check clearance on the grounds that he is a disqualified person under s 18(1)(a) of the Child Protection (Working with Children) Act 2012 (NSW), is affirmed.

2. The application is dismissed.

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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: 03 October 2025