GXE v Children's Guardian - [2025] NSWCATAD 285

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GXE v Children’s Guardian [2025] NSWCATAD 285
Hearing dates: 25 September 2025
Date of orders: 18 November 2025
Decision date: 18 November 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
A Limbury, General Member
Decision:
The decision of the respondent dated 11 February 2025 be set aside and substituted with a decision that the applicant’s working with children check clearance be granted.

Catchwords:
ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — jurisdiction following amendments under Child Protection (Working with Children) and Other Legislation Amendment Act 2025 — administrative review of refusal — whether a real and appreciable risk to the safety of children — serious allegations of historical sexual abuse — charges withdrawn – no other criminal record, charges or allegations made against the applicant
PROCEDURE — admissibility of documents recording helpline reports – tender of documents authorised

Legislation Cited:
Administrative Decisions Review Act 1997(NSW)
Child Protection Legislation Amendment (Children’s Guardian) Act 2013 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) and Other Legislation Amendment Act 2025 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children’s Guardian Act 2019 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014
Civil and Administrative Act 2013 (NSW)

Cases Cited:
Commissioner of Police v Eaton [2013] HCA 2
DAI v Children’s Guardian [2017] NSWCATAD 308
DVV v Children’s Guardian [2020] NSWCATAD 237
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130
Hogan v Hinch (2011) 243 CLR 506
Mulholland v AEC [2004] HCA 41 at [39]; 220 CLR 181
PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514
PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514
VQB v The Secretary to the Department of Justice [2013] VCAT 789
ZZ v Secretary, Department of Justice [2013] VSC 267

Texts Cited:
Explanatory Note to the Child Protection Legislation Amendment (Children’s Guardian) Bill 2013
Second reading speech, 5 August 2025 Hansard, p21

Category: Principal judgment
Parties: GXE (Applicant)
The Children’s Guardian (Respondent)
Representation:
The Applicant (Self-represented)

Solicitor:
Crown Solicitor (Respondent)
Counsel:
J Curtin (Respondent)

File Number(s): 2025/00076902
Publication restriction: With the exception of officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under sections 64(1)(a) and (1)(c) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

This is an application for review of the decision by the respondent to refuse to grant the applicant a working with children check clearance under the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act). He has been given the pseudonym of GXE to protect the identity of a child who was the subject of allegations of sexual abuse.
The applicant is an 83 year old retired man living in regional New South Wales. He has been a school bus driver for many years. He is married with one adult child from this relationship, a daughter. He also has two stepchildren, again from this relationship, and two adult children from his first marriage. The applicant has ten grandchildren.
The applicant and his second wife separated soon after the birth of their child and his second marriage ended in divorce by 1985. The applicant has one child from this relationship, also a daughter. This second relationship was acrimonious, and he is estranged from this daughter following allegations of abuse when his daughter was very young. In September 1988, the applicant was charged in relation to these allegations, but the charges were subsequently withdrawn. He has no criminal record.
The applicant applied for a working with children check clearance in 2014 but was refused in 2015 after a risk assessment was undertaken by the respondent triggered by the previous charges. The applicant worked in other driving roles for his then employer but on 30 August 2021, he reapplied so he could drive school buses in the local area on a part time basis.
The respondent conducted a risk assessment and on 11 February 2025, notified the applicant of the decision to refuse his clearance. The applicant applied for review of this decision to the Tribunal. He represented himself.
The question for the Tribunal is whether the applicant poses a real and appreciable risk to the safety of children and, if he does not, whether he should be granted a working with children check clearance. This second issue requires consideration of the “reasonable person” and “public interest” tests. The Tribunal does not exercise discretion in these matters but makes its decision based on findings of fact about whether an applicant meets or does not meet the relevant criteria or benchmark.
We have decided to set aside the decision under review and substitute a decision that the applicant be granted a working with children clearance. Our reasons follow.

Relevant law

The WWC Act establishes a statutory scheme to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances. This is the sole object of the WWC Act as set out in s 3. Section 4 provides that the safety, welfare and well-being of children, and in particular, protecting children from child abuse, is the paramount consideration in the operation of the WWC Act.
The WWC Act was amended by the Child Protection (Working with Children) and Other Legislation Amendment Act 2025 (NSW) effective from 23 September 2025, being the date of assent. The amending legislation replaces external review of decisions made by the Children’s Guardian in relation to working with children check clearances with internal review and replaces the entitlement of a disqualified person to apply to the Tribunal for an enabling order with a right to seek disqualification reassessment from the Children’s Guardian (second reading speech, 5 August 2025 Hansard, p21). As such, a person who has been refused a working with children check clearance or whose clearance has been cancelled will no longer have the right to seek external review to this Tribunal. A person who is automatically disqualified because they have been convicted or found guilty of certain serious offences, will no longer be able to apply to this Tribunal for an enabling order to permit them to apply for a clearance.
Because the application for review was made by the applicant before 23 September 2025, it is relevant to consider the transitional and savings provisions that apply to such applications.
Schedule 3 of the WWC Act contains savings, transitional and other provisions to give effect to the new regime.
Relevantly, cl 25 states:

An amendment made to a provision of Part 4 of this Act by the amending Act does not apply to or in respect of a review (or an appeal arising from a review) if the review commenced before that amendment and that provision, as in force immediately before that amendment, continues to apply to and in respect of any such review or appeal.

Clause 27 applies to applications for review or applications for an enabling order that have been made to the Tribunal but were not finally determined before commencement date. If the relevant application was commenced before the introduction date, the application must be determined by the Tribunal as if the amendment Act had not commenced: cl 27(2). However, if the application was commenced on or after the introduction date, the application is taken to have been withdrawn by the person who made the application and the person has 28 days apply for an internal review or a disqualification reassessment, as the case may be: cl 27(3).
Clause 27(6) contains the relevant definitions for the purposes of the savings and transitional provisions. The “introduction date” means the date on which the Bill for the amendment Act was first introduced into Parliament: cl 27(6). This date was 5 August 2025. The “commencement date” means the date on which the clause commences. Section 2 of the Child Protection (Working with Children) and Other Legislation Amendment Act 2025 provides that the Act commences on 1 December 2025 for the provisions relating to mutual recognition of negative notices but otherwise commences on 23 September 2025. Thus, applications lodged with the Tribunal under the WWC Act before 5 August 2025, will continue under the regime in place prior to the amendment. Applications lodged on or after 5 August 2025, will be governed by the new regime.
This application was lodged before 5 August 2025 and was not finally determined before 23 September 2025. As such, we must determine this application in accordance with the provisions in place prior to the amendments coming into effect.
The relevant provisions, as they were in force prior to 23 September 2025, are summarised below.
Section 5B of the WWC Act provides that a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.
The term child-related work has the meaning in ss 6 and 7 and involves direct contact by the worker with a child or children where that contact is a usual part of and more than incidental to the work. Section 8 provides that a worker must not engage in child-related work unless the worker holds a working with children check clearance of a class applicable to the work. Section 12 provides for two classes of working with children check clearances, namely volunteer clearances, authorising workers to engage in unpaid child-related work, and non-volunteer clearances, authorising workers to engage in paid and unpaid child-related work.
A person may apply to the respondent for a working with children check clearance under s 13 and the application must specify the class of clearance requested. A person who is refused a working with children check clearance or whose clearance is cancelled is not entitled to make a further application for clearance until five years after the date notice of the refusal or cancellation was given to the person or unless a further early application is permitted: s 13A of the WWC Act.
Section 14 provides that a person is subject to an “assessment requirement” if any of the matters specified in Schedule 1 to the WWC Act apply to the person. Schedule 1 sets out “assessment requirement triggers”. These triggers include cases where proceedings have been commenced against a person for certain offences specified in cl (1) of Schedule 2 and cases where proceedings have been commenced against a person for an offence specified in the cl (2) being, relevantly, offences committed against, with or in the presence of a child. Further grounds specified in Schedule 1 that trigger a risk assessment are cases where there has been a finding of misconduct involving children by a reporting body that the person engaged in a sexual offence committed against, with or in the presence of a child, sexual misconduct committed against, with or in the presence of a child or any serious physical assault of a child: Sch 1, cl (2).
If the respondent becomes aware that the applicant, or the holder of a clearance, is subject to an assessment requirement, a risk assessment must be conducted by the respondent under s 15 to determine whether the applicant or clearance holder poses a risk to the safety of the children. Section 15(4) sets out the matters that the respondent may consider when making an assessment. These matters are in similar terms to the matters the Tribunal must consider as set out in s 30 below.
The applicant was charged with offences falling within Schedule 2(1) and, even though he was not convicted of those offences and the charges were withdrawn, he is a person in respect of whom the respondent was required to undertake a risk assessment under s 15 of the WWC Act.
Section 18 of the WWC Act sets out how the determination of applications for clearances must be made. If a person has been convicted or found guilty of certain serious offences as specified in Schedule 2 of the WWC Act or if those proceedings have been commenced but are still pending, that person is a disqualified from applying for a working with children check clearance under s 18(1). The Children’s Guardian must not grant a working with children clearance. However, under s 18(2) the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under sections 14 or 15 unless satisfied that the person poses a risk to the safety of children.
As such, s 18 sets out a different test for granting a clearance depending on whether or not the person is a disqualified person and whether the person meets certain assessment triggers. If a person is disqualified, the Children’s Guardian must not grant a clearance. If the person is not disqualified but prior conduct or reporting activates the specified assessment triggers, the Children’s Guardian must undertake a risk assessment and must grant the clearance, unless satisfied that the person poses a risk to the safety of children.
In this case, if the applicant had been convicted or found guilty of the offences, he would have been automatically disqualified from applying for a working with children check clearance. However, because he was not convicted or found guilty, s 18(1) does not apply. This is not in dispute.
Section 27 provides that a person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of the decision within 28 days after notice of the decision was given to the person. The Tribunal exercises its administrative review jurisdiction under s 30 of the Civil and Administrative Act 2013 (NSW) (NCAT Act) in respect of these proceedings.
If a person is disqualified under s 18(1), the only recourse is for the person to apply for enabling orders under s 28 of the WWC Act to seek orders that the Tribunal grant a clearance. Section 28 provides that a disqualified person may apply for an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of the WWC Act in respect of an offence specified in the order. Section 28(7) also provides that in any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The Tribunal exercises its general jurisdiction under s 29 of the NCAT Act in proceedings seeking enabling orders. Because the applicant is not a disqualified person, he does not need to seek an order under s 28 and these proceedings are administrative review proceedings under s 27 of the WWC Act. The provisions in relation to s 28 of the WWC Act are included for completeness and to illustrate the differences between the two provisions.
Both sections 27 and 28 require the Tribunal to making findings about whether the applicant in the proceedings poses a risk to the safety of children. Both also require the Tribunal to consider the mandatory matters listed in s 30 of the WWC Act. Section 30(1) states as follows:

(1) The Tribunal must consider the following in determining an application under this Part--
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person’s present age,
(h) the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(i1) any order of a court or Tribunal that is in force in relation to the person,
(j) any information given by the applicant in, or in relation to, the application,
(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,
(k) any other matters that the Children’s Guardian considers necessary.

A key difference between proceedings for administrative review under s 27 and an application for an enabling order under s 28 relates to the burden of satisfaction about the risk to the safety of children. In applications for administrative review, the Tribunal (standing in the shoes of the Children’s Guardian) must grant the clearance unless satisfied the person poses a risk to the safety of children. However, when a person is disqualified, the onus is reversed and the Tribunal must be positively satisfied, as required by s 28(7), that the applicant does not pose a risk to the safety of children before making an enabling order.
In making either of these determinations, the Tribunal must have regard to the mandatory considerations in s 30(1).
If the Tribunal is considering making an order which has the effect of enabling a person to work with children (either under s sections 27 or 28 of the WWC Act), it cannot do so unless it is satisfied about the supplementary tests contained in s 30(1A)(a) and (b) which states:

(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.

As such, if the Tribunal is satisfied that the applicant poses a risk to the safety of children in an application for review of a refusal (under s 27) or if the applicant does not displace the presumption and satisfy the Tribunal that he or she does not pose a risk to the safety of children in an application for an enabling order (under s 28), it is unnecessary to consider the supplementary tests.

The issues

This is an application for administrative review of the respondent to refuse the applicant’s working with children check clearance. The respondent refused the clearance after conducting a risk assessment under s 15 of the WWC Act. In short, the respondent was satisfied that the applicant posed a risk to the safety of children.
Section 63 of the ADR Act provides that in determining an application for administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. The Tribunal may decide to affirm, vary or set aside the decision under review. If the Tribunal sets aside the decision, it may make a decision in substitution for the decision set aside or it may remit the matter for reconsideration to the original decision maker in accordance with any directions or recommendations.
The first issue is whether the applicant poses a risk to the safety of children and whether his working with children check clearance should be refused on this basis. In determining this issue, the Tribunal must have regard to the mandatory considerations set out in s 30 of the WWC Act. If we decide to set aside the decision under review and substitute a decision that the clearance be granted, we must be satisfied that the applicant also satisfies the reasonable person and public interest tests.

Material before the Tribunal

The following information was provided by the respondent under s 58 of the ADR Act (Ex R1) and included:

Documents which were the subject of the risk assessment investigations undertaken by the respondent in its consideration of the previous application by the applicant made in 2014 for a working with children check clearance. Those documents include information provided by Family and Community Services (FACS), now the Department of Communities and Justice, on 30 January 2015, which comprised a file note with notifications relating to the two incidents, a file note from a district officer dated 25 August 1988 and extracts from the brief of evidence provided to the Director of Public Prosecutions relating to the second incident. The investigation documents also included documents from the Supreme Court about the charges that were withdrawn, submissions to the respondent (and attachments to those submissions) from the applicant’s former lawyers and character references.

A document from the NSW Police Force, sex crimes squad, being a microfilm of record held by NSW Police being an event report in relation to the second incident.

Character references dated 2024 provided by the applicant in support of his application for a clearance.

Internal risk assessment document prepared by an officer of the respondent.

Records provided by FACS of notifications of abuse made in August 1990.

There was a contentious issue raised about whether the reports referred to in [31](5) above could be admitted into the evidence in the proceedings. We decided that these documents were admissible, made a ruling about this during the hearing and, accordingly, the applicant was cross examined about these documents. This evidence and our reasons for why we were satisfied the documents could be admitted into evidence are set out later in this decision.
The applicant provided (Ex A1-:3)

A statement in response to the decision to refuse his application.

Submissions in relation to documents provided by the respondent in the s 58 documents.

Documents relating to the criminal proceedings, including a statement from a friend who has since deceased and briefing material provided to his formal lawyers, including a handwritten timeline of events over the weekend commencing on 12 August 1988.

Documents relating to the family law proceedings.

Are the records provided by FACS (now DCJ) admissible?

The contentious documents and how the issue arises

The respondent sought to tender a bundle of documents comprising records of reports of significant harm to the applicant’s daughter which were made in 1988 and 1990. The reports were notified to FACS and were provided to the respondent in response to a request from the respondent under s 31 of the WWC Act. Section 31 empowers the respondent, by notice in writing, to require any person to provide the respondent with a statement or information relevant to an assessment of whether a person poses a risk to the safety of children.
At the time of the proposed tender, the respondent properly identified that some of the documents were notifications potentially falling within s 29, which is in Part 2 of Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act). We deferred making a decision on the proposed tender pending consideration of the respondent’s submissions.
Part 2 of the Care and Protection Act sets out the circumstances when a child or young person is at risk of “significant harm” and provides mandatory reporting requirements for certain persons. For the purposes of Part 2, a “report” is a report concerning a child or young person at risk of significant harm: s 23. Section 24 provides that a person who has reasonable grounds to suspect that a child or young person, or that a class of children or young persons, are at risk of significant harm may make a report to the Secretary. Section 26 provides that reports under ss 24 may be made anonymously. Section 29 of the Care and Protection Act protects the maker of a report where the report is made in good faith to the Secretary or a person who has power or responsibility to protect the child or young person or the class of children or young persons. Relevantly, there are restrictions in how those reports or evidence of their contents can be used.
Under s 29(1)(d) if, in relation to a child or young person or a class of children or young persons, a person makes such a report, “the report, or evidence of contents” are not admissible in proceedings other than those proceedings specified within the subsection. Those proceedings are:

(i) care proceedings in the Children’s Court,
(ii) proceedings in relation to a child or young person under the family law Act 1975 of the Commonwealth,
(iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal,
(iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013 ,
(v) proceedings under the Coroners Act 2009 , and

In its covering letter providing the information, the Department of Family and Community Services stated that the reports provided had been redacted by the due to the Department’s obligation to keep certain information confidential under s 29(1)(f) of the Care and Protection Act. Section 29(1)(f) provides that the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed unless consent or leave is granted. Several of the notification documents contained redactions. As such, there is no dispute that there has been compliance with s 29(1)(f).
The respondent sought to tender the following documents that were identified as documents falling within s 29(1)(d) being:

a file note of a telephone call referring to the child the subject of the complaint and the notification and assessment date (p49 of Ex R1);

a notification intake and assessment report with the notification date of 27 August 1990 (p50 &51 of Ex R1);

an assessment report dated 19 September 1990 in relation to the 27 August 1990 notification (p52 of Ex R1);

an investigative interview summary dated 19 September 1990 (p54 of R1);

a handwritten note dated 16 August 1988 being a report of the second incident (p57 of R1); and

a referral to NSW Police of a child abuse notification, undated (p68 of R1).

The respondent accepts that s 29(1)(d) is broad enough to cover these documents because, even if the documents are not the actual reports of the notification, they are nonetheless “evidence of the content” of the report. We agree. The respondent does not contend that the present proceedings fall within the exceptions identified in s 29(1)(d). We also agree. This therefore raised the contentious issue regarding the tender of the documents and whether the applicant could be questioned about these matters.
After considering the matter over the lunch break, we decided the documents could be admitted. The parties were advised of our decision at the hearing, and we allowed the applicant to be questioned about the contents of the documents. Our reasons are set out below.

The respondent’s submissions at the hearing

The respondent contended that the documents may be admitted into evidence, despite s 29(1)(d). According to the respondent, on its proper construction, s 48A(2) permits the respondent to tender documents which may fall within s 29(1)(d) where it is necessary to do so in the exercise of its functions under the WWC Act. Section 48A provides as follows:

A report referred to in section 29 of the Children and Young Persons (Care and Protection) Act 1998 may be provided to the Children’s Guardian for the purpose of the exercise of the Children’s Guardian’s functions under this Act. Any such report may not be subsequently dealt with by the Children’s Guardian in a manner that contravenes that section, except to the extent that it is necessary for the Children’s Guardian to do so in the exercise of functions under this Act.
[emphasis added]

The WWC Act sets out specific powers and functions of the Children’s Guardian, for instance, the role in determining applications for clearances under s 18 and making risk assessments under s 15 and the functions under Part 6. The functions of the Children’s Guardian are also set out in Children’s Guardian Act 2019 (NSW). Relevantly, s 128(1)(a3) provides that the principal functions of the Children’s Guardian include exercising functions relating to persons engaged in child-related work, including working with children check clearances under the WWC Act. Section 128(2) also provides that the Children’s Guardian has functions conferred or imposed by or under any other Act. Those functions include the obligation under s 58 of the ADR Act to lodge with the Tribunal a copy of every document or part of a document that is in the possession, or under the control, of the Children’s Guardian that the Guardian considers to be relevant to the determination of the application by the Tribunal. Relevantly, there are obligations on the Children’s Guardian as a party to an administrative review under r 27 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) and under s 28(4) of the WWC Act (as it was before amendment) to an application for an enabling order.
It is submitted that, as a party to proceedings, particularly administrative review where the role of the Tribunal is to make the correct and preferable decision under s 63 of the ADR Act, it is an important part of the respondent’s functions to file with the Tribunal and tender documents that are relevant to the critical question in a working with children check clearance case, namely whether the person who has made the application poses a risk to the safety of children. The respondent submits that the filing and subsequent tender of such documents is authorised by s 48A(2) if it is “necessary” to the proper and effective presentation of the respondent’s case and in the exercise of the function to respond to proceedings in the Tribunal. The expression “necessary” has different shades of meaning depending on the circumstances and does not mean “essential” (Mulholland v AEC [2004] HCA 41 at [39]; 220 CLR 181 at p199). Whether the filing and subsequent tender of a document is “necessary” for the exercise of functions in proceedings before the Tribunal will depend on whether the document is relevant to the issues in dispute that require determination by the Tribunal. For instance, once filed, the Tribunal must then consider whether the material can be admitted into evidence, and this leads to consideration of whether the material is not permitted to be admitted under s 29(1)(d) the Care and Protection Act or whether it is excused by s 48A(2) of the WWC Act.
In the present case, we accept that several of the documents sought to be tendered are relevant to the claim made by the applicant that he notified FACS about safety concerns for his daughter but did not report the perpetrator. The contention that his daughter may have been abused “but not by him” is relevant to the applicant’s contention that claims were fabricated against him. The applicant made no objection to the proposed tender. It is also relevant to the respondent’s contention that this claim is not plausible but, if it was, this demonstrates that the applicant could not be trusted to take protective action of children in the future if this conflicted with his interests. The reports of the 1988 incident are also relevant to claims by the applicant that the allegations were fabricated. The documents, and questioning the applicant about these issues was, in our view, materially relevant to the issues in the proceedings. The question is whether seeking to admit those documents is dealing that is authorised by a 48A of the WWC Act.

The legislative history of amendment

Section 29 was included in the Care and Protection Act before the WWC Act was enacted. Section 48A was inserted into the WWC Act in 2013 by the Child Protection Legislation Amendment (Children’s Guardian) Act 2013 (NSW). The object of this Act was to transfer the functions relating to working with children check clearances from the Commissioner for Children and Young People to the Children’s Guardian. Prior to this amendment the Commissioner was exercising functions both under the Care and Projection Act and the WWC Act.
According to the Explanatory Note to the Bill (introduced on 22 May 2013), s 48A was inserted to provide for the Children’s Guardian to use information obtained in the course of exercising functions under the WWC Act for the purposes of making a report to the Department of Family and Community Services and, conversely, to provide for reports referred to in s 29 of the Care and Protection Act to be provided to the Children’s Guardian in accordance with a requirement under the WWC Act. Section 48A(2) expressly preserves the restrictions contained in s 29(1)(d) but goes on to allow the Children’s Guardian to “deal” with documents that may fall within that subsection, which we accept would include seeking to tender those documents in WWC Act proceedings when necessary to do so in the exercise of functions under the WWC Act.

Can the respondent seek to tender the reports under s 48A(2)?

In our view, it would be incongruous if the Children’s Guardian could request this information under s 31 of the WWC Act and rely on the information for the purposes of undertaking a risk assessment and making a decision under s 18 but not be allowed to tender that information as part of the Tribunal proceedings. In our view, there is no direct conflict between the two provisions, particularly given that s 48A expressly permits contravention of s 29 of the Care and Protection Act, albeit limited in its scope and operation to those instances where the tender of documents by the Children’s Guardian is necessary in the exercise of functions.
Accordingly, we accepted the submission of the respondent that, despite s 29(1)(d) of the Care and Protection Act, s48A(2) of the WWC Act authorises the respondent to tender in these proceedings the documents identified if it is established that the tender is necessary in the exercise of the respondent’s functions under the WWC Act.

Can the Tribunal admit the reports into evidence in these proceedings?

If s 48A(2) authorises the Children’s Guardian to tender documents that may fall within s 29(1)(d), the question then arises is whether, despite s 48A(2) of the WWC Act, s 29(1)(d) otherwise operates to preclude the Tribunal from admitting those documents into the evidence in WWC Act proceedings. While not free from doubt, we concluded that it did not. Our reasons for this are as follows.
The Tribunal is exercising its administrative review function and, as such, stands in the shoes of the respondent. On that view, the Tribunal would be entitled to rely on s 48A(2) for the purposes of the proceeding. However, we cannot ignore the fact that s 29(1)(d) of the Care and Protection Act in its terms proscribed the circumstances in which the Tribunal may admit this type of material.
This raises a question about whether there are two provisions in different legislation which, on their face, are in conflict − one, an earlier specific provision directed to protecting persons who make reports under Part 2 of the Care and Protection Act about the admissibility of reports into evidence, and a second later provision allowing the use of those reports by the Children’s Guardian, which would include the tender of those documents in proceedings which have not been excluded from the limitation on admissibility in s 29(1)(d) of the Care and Protection Act.
In Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130, the High Court considered the potential inconsistency between statutory remedies for dismissal of police officers in successive state statutes. Gummow and Hayne JJ stated at [18]:

It has long been recognised that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Inconsistency lies at the root of this principle.

It was further observed at [47]:

No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions. If, upon their true construction, there is an “[e]xplicit or implicit contradiction” between the two, the later Act impliedly repeals the earlier.

After considering the provisions of both Acts, Gummow and Hayne JJ stated at [54] that “standing alone” the differences would not demonstrate explicit or implicit contradiction between the two Acts because,

The two Acts could be accommodated by reading the requirements which the wrongful dismissal provisions of the Industrial Act would require an employer to take into account in exercising the power to terminate an employee’s services, as additional considerations to be taken into account by the Police Commissioner when exercising the powers under s 40(1) of the Police Act.

However, their Honours found at [55] that there were other matters to be taken into account as to whether the two Acts are contradictory, including relevantly, that the Police Act, when read as a whole, revealed an intention to be a comprehensive statement of the powers of the Police Commissioner to terminate appointment of a member. Their Honours decided that at [57]:

The affirmative words of these provisions of the Police Act are to be read as also having a negative force and forbidding the doing of the thing otherwise under the Industrial Act. It follows that the Police Act explicitly or implicitly contradicts the wrongful dismissal provisions of the Industrial Act.

Having made this finding, Gummow and Hayne JJ further found that the Police Act impliedly repealed those provisions of the Industrial Act providing for unfair dismissal for members of the South Australian Police.
As observed by the plurality (Crennan, Keifel and Bell JJ) in Commissioner of Police v Eaton [2013] HCA 2 at [48] referring to the decision of Gummow and Hayne JJ in Ferdinands:

However, as their Honours observed, the law presumes that statutes do not contradict one another. The question is not whether one law prevails, but whether that presumption is displaced.
[endnote omitted]

In this case, s 48A(2) of the WWC Act and s 29(1)(d) of the Care and Protection Act can “stand or live together”. insofar as they concern the Children’s Guardian. For the reasons outlined above, they are not in conflict. However, the existence of affirmative words in s 29(1)(d) of the Care and Protection Act providing that a report or evidence of its contents is not admissible in proceedings does not only impact the Children’s Guardian, if such a report is sought to be relied on, but the Tribunal and the other party to the proceedings.
In our view, the words of s 29(1)(d) are clear and the exceptions do not apply to proceedings in the Tribunal in relation to the WWC Act. However, s 48A(2) is also in our view clear in its intent. There is nothing in the extrinsic materials, such as the Explanatory Note, to indicate whether amendment of s 29(1)(d) was considered to exclude proceedings under the WWC Act in certain circumstances. As observed above, if s 48A(2) allows the Children’s Guardian to tender such reports or evidence of their contents as necessary for the exercise of the functions, it would be incongruous and counter the intent of the s 48A(2) amendment to preclude the Tribunal from admitting the document into evidence.
Accordingly, when the criteria in s 48A(2) is established, we are of the view that the presumption s 29(1)(d) prevails to preclude the admissibility of reports or evidence of their contents in WWC Act proceedings, is displaced. It therefore follows we concluded that the documents referred to above can and should be admitted as evidence in these proceedings.

Background and outline of evidence

The applicant applied for a clearance on 1 August 2021 nominating transport services for children as the child related sector. His application was referred for a risk assessment because of the presence of records indicating that four charges of sexual abuse had been laid against the applicant involving a child under 10 years of age. The charges, which were subsequently withdrawn, related to two separate incidents, the first of which was alleged to have occurred when the alleged victim, the applicant’s daughter, was 8 or 9 months old. The second incident was alleged to have occurred when his daughter was five years old.
At the time of the first incident, the applicant was separated from the mother of the child who was the subject of the child abuse charges (his second wife) and there were family law proceedings on foot. By the time of the second incident, the applicant was divorced from his second wife and had remarried. He was living with his third wife, two stepdaughters and a child from this relationship.
The following details about the alleged incidents have been ascertained from the s 58 documents.
The first incident was alleged to have taken place in 1984 and was subject of a charge of one count of indecent assault towards a young girl aged approximately 8 or 9 months. The complaint was made by the applicant’s former partner. There are no source documents relating to this first incident other than a reference in a FACS report dated 25 August 1988 by the district officer. The report records that the applicant had access to the child every second weekend and half the school holidays and that this matter was originally brought before the Family Court four years ago as evidence “presented by the mother that the father was caught by her masturbating over the child”. It is further recorded that an order was then made for supervised access which lasted two years and then day only access for another two years. It is noted that the applicant had weekend access once the child commenced school. There is no record of criminal charges being laid against the applicant at this time, nor are there records of the access applications determined by the Family Court at this time. The applicant disputes that this incident was raised at the time and disputes that the Family Court limited his access because of these allegations. His evidence in relation to this is outlined later.
This incident was the subject of indictment and is recorded as the fourth count of the indictment. There are no further documents relating to this charge other than a certificate from the Supreme Court of NSW dated 17 November 2014 recording that no further proceedings were taken in relation to the four charges which were the subject of the indictment based on advice from the Director of Public Prosecutions dated 25 January 1990. This certificate notes that the DPP decided on 19 January 1990 not to proceed further against the applicant in respect of the four charges, and it is recorded that there were no further outstanding matters in respect of the prosecution. It is apparent that this document was obtained by the respondent as part of its investigations in determining the previous application for a working with children check clearance. The other three charges in the indictment related to the second incident.
The second incident was alleged to have taken place over the weekend commencing on 12 August 1988 at the applicant’s home during a weekend access visit. The applicant was charged with sexual intercourse with young girl age 5 years (Count 1) and acts of indecency on a young girl age 5 years under his authority (Counts 2 and 3).
NSW Police records state that the victim complained about the incident to a person (whose name was redacted from the report) and that she was subsequently medically examined and interviewed by police from the child abuse area. It is recorded that the applicant was arrested and later charged at the police station with sexual assault, category 3 and 4. The date of this entry is not recorded in the NSW Police records, but it is stamped as having been received by the State Intelligence Group on 6 September 1988.
In addition to these records, there is a transcript of an interview of the child on 23 August 1988, which is about 7 pages, with a covering report dated 24 August 1988 referring to the interview. The child’s mother was present during the interview, and it is not entirely clear who conducted the questioning. The report concludes that:

In essence the evidence from the child indicated, at the very least, that the father masturbated on her and infers that perhaps digital penetration took place.

The report also notes as follows:

Previous to that answer on the same page some time was taken out from taking evidence. It became apparent that [the child] was becoming agitated and rather coy about continuing the conversation. Her attention span was also waning. I discussed with [the mother] the need that when taking evidence that leading questions should be avoided however we had come to a stalemate at this point at a leading question was necessary to pick up the impetus.

Following this, there is a file note dated 25 August 1988 from the FACS district officer outlining three options available to ensure the protection of the child. The first identified was action in the Criminal Court, the second identifies proceedings in the Family Court and the third option identified was the Children’s Court. It is noted in regard to possible criminal action that there is no guarantee that the police would be able to proceed and charge the father as the victim was five years old and it was “highly unlikely” she would make a good witness if the matter was contested. In relation to the Family Court option, it was noted that the mother currently had sole custody of the child and the access orders had been made by the Family Court − there was no guarantee that the Family Court would alter this access for weekend access, and if contested, it would take some time. The third option of the Children’s Court was considered to be the favoured option because the Department would have better control over the situation. It was recommended that the matter be discussed with the legal branch but at that stage, but the Children’s Court action was the most appropriate alternative.
The child was medically examined on 25 August 1988 by a doctor. The doctor stated that after examination, in her medical opinion, the reported history that the alleged offender hurt the child’s vaginal and anal areas with his hand was consistent with the doctor’s physical findings.
There is a record from the district officer dated 26 August 1988 stating that the medical assessment had been completed and that the medical evidence was consistent with the child’s story. It was noted that the officer had conferred with the mother’s solicitor and she was applying to the Family Court for suspension of access. There is no record of the application made to the Family Court, although there is a file note from the district manager of FACS dated 5 May 1989 stating that access had been stopped by the Family Court and the child had received counselling.
Following the medical assessment, there is a record of a telephone call with the police officer from the sexual abuse unit to the effect that the child was “an excellent witness” and that with the medical evidence and the child’s statement would be enough to charge the father. This telephone call is dated 2 September 1988. The applicant was arrested on 3 September 1988 and subsequently charged. This is recorded in a statement from the arresting officer dated 26 October 1988. The statement includes details of the conversation with the applicant at the time of his arrest. The applicant denied the allegation and was initially resistant to allowing the police officers to come in until he had seen their identification. This is relevant to a claim later made by the applicant that he had been attacked in his house by strangers days after the weekend access visit. The applicant is reported to have said as follows:

I’m sorry for all this but I had some trouble here last week with some people who said they were police but they weren’t and they belted me outside. Please come in.

When the police officers said that they wished to take him to the police station, he said that he wanted to ring the Police Department to verify who the officers were. On the journey to the police station, he is reported to have said as follows:

I’m sorry for the problems I have caused today, but after what happened last week I think you would understand. I’ve done nothing of a sexual nature to my daughter but I suppose they all say that.

The applicant denied the claims and defended the proceedings. Included in the submissions from his former lawyers to the respondent in relation to the first application for a clearance are type written diaries of the events prepared by the applicant and his third wife for the period 12 to 14 August 1988 and brief statements from his two stepdaughters who were also living at the house. These statements are to the effect that, after collecting the child on Friday afternoon for the access visit, the family were busy on Saturday morning with activities. The child was involved in those activities with together with either the applicant’s third wife or the other stepchildren. The applicant attended an auction in the afternoon. There were further activities on the following Sunday morning, and the applicant was out in the morning. In summary, the effect of these statements and diary notes was that there was limited time when the applicant was with the child by himself. These documents were prepared for the purpose of the criminal proceedings.
The applicant provided additional documents to the Tribunal relating to the criminal charges. This information set out below is part of the applicant’s evidence.
Included in the s 58 documents is a letter from the Office of the Director of Public Prosecutions dated 25 January 1990 to the applicant’s lawyers. The letter is in the following terms:

It is understood you are acting on behalf of the above named accused and accordingly, I advised that the Director of Public Prosecutions, having carefully considered the case, has decided not to proceed further against the accused in respect of the charges mentioned.

It is unclear what happened in relation to the criminal proceedings and the only further documents relating to the criminal and family law proceedings were those documents provided by the applicant as referred to below. However, it is apparent that there was a committal proceeding, following which the applicant was committed for trial. Despite this, there is evidence the DPP decided not to proceed with the charges. It is unclear why.
The applicant made a complaint in September 1990 in relation to the alleged sexual abuse of his daughter. By this stage, the charges against him had been withdrawn and he and his family had moved to regional New South Wales. The complaint alleges that an incident of abuse had taken place relating to his daughter. The applicant stated that he was not the perpetrator but knew who was. He declined to nominate who the person was. The record of this notification was a disclosure made under Part 2 of the Care and Protection Act.
Following this complaint, there is a handwritten file note from the district officer of FACS who had been previously involved in the investigation of the sexual abuse allegations against the applicant. The file note dated 19 September 1990 was to the following effect:

I’m not convinced that any abuse took place as described by natural father. What does disturb me is the father’s continual denial of abuse himself and he’s continued disturbance of the placement.
The previous proceedings were not “no billed”. In fact after consultation with myself and the prosecutor, [the child’s mother] decided not to proceed and allow [the child] to go through the court case. The matter had already gone through the lower court and the applicant was found to have a case to answer.
If he was concerned about his daughter why hadn’t he notified before now? His motivation is suspect. He has been denied access by the family court and only because of the emotional damage a court cases would have on his daughter he has avoided court.
It is recommended that the girl not be interviewed. She is very young and quite fragile and it would be damaging to interview her.

The documents that were provided under s 48A of the WWC Act relating to this allegation in 1990 are described in more detail above.

The applicant’s evidence

The applicant provided a statement and submissions in support of his application. He states that he is innocent of the charges levelled against him and that an accurate and complete timeline of the weekend demonstrates that it was not possible for him to have committed any offence against his daughter.
The applicant states that the charges against him were embellished by additional accusations made against him when his daughter was about six months old. He further states that these allegations were not made at the time of the initial access orders and provided copies of family law documents in relation to family law proceedings in 1988, including an affidavit in which he refers to access orders made by consent in 1984 and other orders made in 1985 and 1987. However, the documentary evidence provided does not by itself corroborate his contention.
According to the applicant, there was considerable acrimony between him and his second wife that were caused by his father in law. The applicant contended that the acrimony started when he got involved in a family dispute with between his second wife’s parents when the father was drunk and violent. The applicant states that his father-in-law did what he could to drive a wedge between them. They separated but his father-in-law continued to put pressure on the relationship so that he was not able to see his daughter. The applicant suggested that they get orders from the Family Law Court, but this created more conflict. His access increased but there was further acrimony after he remarried.
The accusations in relation to the second incident were made against him when his daughter stayed over one weekend. The applicant denies the allegations and states that over that weekend, the family was fully occupied, as evidenced by a timeline prepared by him. He was committed for trial but was never able to clear his name, because the DPP dropped the charges.
The applicant states that threats were made to him and his family and that he was assaulted in his home by three people who identified themselves as police officers. They insisted that he come out onto the front lawn to be interviewed and once he did this, they assaulted him. The applicant believes that his second wife’s father was behind these assaults. He said that the threatening telephone calls and assault at his house occurred after the alleged weekend access incident. He reported the incident to the police that night and they came and interviewed him but they did not pursue the incident and so he did not complain further. The applicant said that given the criminal charges and the family law proceedings were on foot, he did not want to rock the boat. He also said that he did not want to tell the FACS district officer about who he suspected was abusing the child because he feared for his family. He was very frightened of his former father-in-law, who was violent and influential. He and his third wife decided to move to regional New South Wales to escape the conflict and to keep their children safe. This was about 12 months after the alleged assaults.
The applicant has had no contact with his daughter other than on one occasion in 2000 at the Easter show where he saw her and considered going to speak to her. When she saw him, she said to him “I will have you charged with stalking”. The applicant went away and did not go near her. He has not seen her since. However, he believes she has attempted to contact one of his stepdaughters.
In 1990 he made a complaint in relation to his second wife’s father. This complaint is set out above and referred to in the s 58 documents. The applicant said that he did not reveal the name of the perpetrator because he feared for his family. This is supported to an extent by the statements reportedly made by the applicant to police at the time of his arrest. This issue was the subject of cross examination. The applicant was questioned as to why he did not name his former father-in-law as the perpetrator if he was really concerned about the abuse of his daughter. In summary, the applicant said that he was concerned about revealing this at this stage because there were proceedings before the courts. He did not realise he could disclose this information confidentially under the protections in the Care and Protection Act. At that time, he was very concerned about his father-in-law, and he had a terrible fear of harassment and what could be done to his family.
The applicant was asked that if this issue occurred today, would he disclose the information or would he keep it secret, even in circumstances where he may fear for his safety. The applicant said that he understood these allegations were extremely serious and he would now disclose the information. He would do things differently.
The applicant said that he has been a bus school driver since 2012. He retired from full time driving in January 2025. He was driving coaches on a part time basis. He decided to make the application in 2021 because he wanted to return to driving school buses. There was a need in the local area for drivers. He had satisfied his driver’s test and was confident that he would be able to undertake the role. He believes that his employers would re-employ him in this role and he had character references from his employer and from one of the schools. The applicant also said that he had been involved with the local Pony Club since 2018 or 2019. The Pony Club was currently not active, but it was previously part of the role this would involve him organising the children to attend Pony Club. He played the role of Santa for many years at community events.
The applicant’s two older children are in their early 50s. They both have children, and he sees them regularly. When they come to stay with him, they stay, together with their children, in his home. He said that one of his stepdaughters ran away from home years ago and was estranged from her family. They had not had contact with her for about 20 years. His other stepdaughter has two children, aged 7 and 9. They live in Sydney, and he has regular contact with them. His youngest daughter from his third marriage is married with one child. She lives in [location] and they see her approximately three times a year.
In his closing evidence and in response to questions that he appeared to have no insight in relation to the seriousness of the allegations made against him, the applicant said that he did understand the seriousness of the claims, but he had always denied the allegations. In his view, allegations of sexual abuse of children were extremely serious, it was a dreadful crime, and this was no way to treat a child. He said that he understood this was particularly serious when a child looked up to a person that they knew and sexual abuse in that situation was even more serious.
The applicant provided evidence addressing the criminal charges raised against him, which appear to be documents that were provided to his lawyers for the purpose of the criminal proceedings. These documents included:

An extract of notes of evidence given at the committal hearing by the doctor who examined his daughter after the alleged incidents in August 1988.

Observations made by another expert about this evidence.

Diary references about the events on the weekend commencing 12 August 1988 and brief statements from his stepdaughters who were also present at the house over the weekend.

A statement from his third wife dated 19 September 1989. It is unclear whether this statement was used in the criminal proceedings. She states that the applicant has a good relationship with his two children from his first marriage, he has a good relationship with her two daughters and he is considerate and respectful and has never been abusive. She further states said there had been ongoing issues for many years in relation to access to the applicant’s daughter. The weekend in question was a normal access weekend and in her view the allegations were cruel and unfounded.

Conference notes of a discussion with his oldest daughter in July 1989, presumably for possible use in the criminal proceedings. She stated that she lived with her father from about June 1987 until February 1988 when she started to live with her grandparents but saw him regularly before this time. She stated that the applicant’s second wife was very bitter towards her father, and she believes that she had put strange things in her stepsister’s head, even at an early age. She did not believe the allegations made.

A statement from a friend dated December 1989, who had a relationship with the applicant’s second wife after she had separated from the applicant. It is unclear whether this statement was used in the criminal proceedings. The applicant said that his friend had since died. According to the statement, the friend spent time with the second wife’s family while they were in the relationship. The former father-in-law was unpredictable, compulsive and dangerous and he did not like the applicant having access to his daughter. He believed that the applicant’s second wife made statements in the Family Court proceedings about the applicant that were not true. The applicant’s second wife also told him that the daughter had a shower with her father (the applicant’s former father-in-law) and the daughter bit him on the penis.

The applicant provided character references from his third wife, his son and daughter from his first marriage, one of his stepdaughters, his daughter from his third marriage and references from his employer. Included in the s 58 documents were character references previously provided in 2014 from a local preschool end a local Catholic school. Both authors state that the applicant had worked with children at the school in various roles and that he was a person of good character and was extremely trustworthy and professional.
The references from his two older children were to the effect that the applicant was a loving and supportive father of great integrity. His son further stated he has two daughters and a son, and they visit his father every school holidays. He believes that his father’s relationship with his stepsister was completely normal, and he has “no doubt in his mind” that the accusation made against his father was a fabrication to prevent his father from seeing his sister. This has been very hard on the family.
The applicant’s stepdaughter provided a reference. She stated that she had known the applicant since she was seven years old. He was a caring and moral man and father figure. She never felt uncomfortable in his presence. She was never concerned about the applicant spending time with her children, he was a caring grandfather. She was in the house on the weekend when allegations were made in by her stepsister. She did not observe any change in the child’s behaviour over the weekend or anything out of the normal.
Evidence was provided by staff and managers from the bus company that employed the applicant. Those statements were to the effect that there had never been any issues or complaints in relation to the applicant as a bus driver. He was caring and they had no concerns about his role as a driver.

Consideration

Does the applicant pose a risk to the safety of children

Legal principles

As already noted, this is an application for administrative review of the decision of the respondent made on 11 February 2025.
In applications under s 27 of the WWC Act, the question for the Tribunal is whether or not it is satisfied, on the balance of probabilities and having regard to the available material, that the person poses a risk to the safety of children. This is in contrast to applications under s 28, where there is a presumption of risk that the applicant must disprove before an enabling order can be made.
The risk to the safety of children must be a real and appreciable risk (s 5B). In other words, not remote or fanciful, and the risk must relate to “the safety of children”, as observed by Young CJ in Commissioner for Young People v V [2002] NSWSC 949; 56 NSWLR 476 in relation to earlier but similar legislation.
In BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523, Beech- Jones J (as he then was) considered the nature and scope of enabling orders and discussed the assessment of risks in the context of the WWC Act. Where there are allegations of sexual abuse in an application for an enabling order, his Honour observed at [33] as follows:

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.

His Honour also observed at [29] that if the Tribunal was considering making a positive finding that an applicant sexually abused child in circumstances where they were not convicted of doing so, it would be “well advised” to have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, namely, that where a court or Tribunal was required to make a finding about the occurrence or existence of a fact where serious allegations are made with serious consequences, the fact should be proven to the level of “reasonable satisfaction”. The decision-maker should not rely on “inexact proofs” must feel actual persuasion.
In CXZ v Children’s Guardian [2020] NSWCA 338, the Court of Appeal (per Simpson AJA and McCallum JA) agreed with the approach of Beech-Jones J in BKE, stating at [57] and [58]:

57. ……The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.
58. It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

Having regard to the legal principles and these authorities, we have assessed the evidence before us to form a view about whether we are satisfied the applicant poses a real and appreciable risk to the safety of children.
In determining this application, the Tribunal must have regard to the factors in s 30(1). We set out our consideration of those matters below.

Mandatory considerations: s 30 of the WWC Act

These mandatory considerations are not matters that go towards the exercise of a discretion but rather they are factors identified under the WWC Act as matters relevant to the assessment or whether the applicant poses a risk of harm to the safety of children.

The seriousness of the offences (s 30(1)(a))

Section 30(1(a) provides that the Tribunal must have regard to the seriousness of the offences with respect to which the person is disqualified or any matters that caused refusal of a clearance or imposition of an interim bar.
In this case, the applicant’s working with children check clearance was refused after a risk assessment because he had been charged with very serious sexual abuse offences in relation to his daughter.
The applicant contends that he is innocent of the charges, the allegations made were fabricated by his former wife in the context of family law proceedings, he was not convicted and, furthermore, he did not have the opportunity to prove his innocent through a contested criminal trial.
The respondent contends that the sexual abuse charges must be considered at the highest possible end of the spectrum in respect of seriousness. Even though the charges were ultimately withdrawn and the reasons for not proceeding are not known, the Tribunal has compelling evidence before it relating to the second incident, which was corroborated by medical evidence from the doctor who examined the child. There is evidence before the Tribunal that suggests one of the reasons why the criminal prosecution did not proceed was because the child’s mother did not wish to expose her daughter to a criminal trial. The Tribunal does not need to make a finding that there was sexual abuse but rather that there is a possibility that this occurred. Relevantly, case was sufficiently strong to result in charges being laid and for the applicant to be committed to stand trial in the Supreme Court.
Much of the evidence provided by the applicant for the review was focused on establishing he was innocent of the allegations made. We accept that the applicant denies all charges. We also accept, based on the material before us, that the allegations in relation to the fourth count, namely the 1984 incident, are less compelling than the later charges. Is unclear from the material provided in relation to the family law proceedings whether these allegations were in fact made four years earlier. The applicant’s second wife told the FACS district officer that this is what happened and that the family court granted supervised access. It is clear supervised access was granted but it appears that this was by consent. However, we have not been provided with any other documents which support the allegation about the first incident, and it is somewhat surprising that further investigations and charges were not laid at the time, which tends to support the applicant’s assertion that this was not raised until 1988.
The same cannot be said for the allegations in relation to the second incident. We accept that the evidence of the interview of the child, together with the medical evidence, is compelling. There is a suggestion by the FACS officer about whether the child was being asked leading questions in the interview. The applicant raises concerns about this. The applicant also raises issues about whether the conclusions made by the doctor were wrong and could have been challenged at a trial. Against this, there is evidence that the matter proceeded to a committal hearing and, as a result of the hearing, the evidence was tested by the court and the applicant was committed for trial. We do not know why the DPP decided not to proceed with the prosecution. It is possible that, despite the committal, the DPP was concerned about the strength of the evidence. It is also possible that the child’s mother decided against exposing the child to a criminal trial. We do not have probative evidence either way, other than the file note from the FACS district officer, which carries little weight – it is a hearsay assertion about the reasons why the prosecution did not proceed.
Accordingly, this is a case where we cannot be comfortably satisfied that the sexual abuse occurred, nor can we be comfortably satisfied that it did not occur. We accept that the claims made by the applicant about the acrimony with his second wife and father-in-law in relation to access to his daughter are credible. This is supported by statements made by his two oldest children, his third wife and a friend, although it should be noted that the evidence from the friend carries little weight as we know very little about this witness or the purpose of the statement. There is a possibility the claims were fabricated in the context of the family law proceedings, but we also accept that there is significant evidence that weighs against this.
In our view, there is a possibility that these very serious offences occurred and this is a matter that supports the contention that the applicant poses a real and appreciable risk to the safety of children.

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

The offences are alleged to have taken place over 37 years ago. There is no evidence of offending by the applicant since this time and, according to his referees, his conduct generally and in relation to children, has been trustworthy and professional. The absence of evidence of misconduct in circumstances where the applicant’s conduct would have been closely scrutinised by his employer as a bus driver and by his family, who were aware of the allegations of child abuse, carries significant weight.
This matter weighs strongly in the applicant’s favour and tends to counter concerns that the applicant poses a risk to the safety of children.

The age of the applicant at the time the offences occurred, the age of the victim, the age difference, any evidence about the vulnerability of the victim and whether the person knew or could reasonably have known that the victim was a child (ss 30(1)(c)-(f))

The applicant was 42 years old when the first incident was alleged to have occurred and 46 years old when the second incident allegedly took place. His daughter was 8 months and 5 years old when these offences are alleged to have taken place. She was vulnerable, and particularly so given the applicant had a special position of trust. There can be no dispute that the applicant knew she was a child.
Given the seriousness of the allegations made, these factors weigh strongly the contention that the applicant poses a risk to the safety of children.

The person’s present age (ss 30(1)(g))

The applicant is 83 years old. He is mature, more experienced than when he was first charged and his evidence is that if he became aware of a risk to a child, he would make a complaint to protect that child. We accept this evidence.
We also note that the applicant, while 83 years old, is still very active. This is not a case where the applicant’s activities would be limited by his age and health. The applicant’s evidence is to the effect that he would actively seek to drive school buses, work at the Pony Club and work as a Santa in community events. As such, this is not a factor that weighs against the contention of risk, although nor does it weigh in favour.

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

We have considered this in the context of ss 30(1)(a) and (b). The applicant has no criminal history because he has not been convicted of or found guilty of any criminal offence. There is no record of any other criminal activity or charges being laid or alleged against him.
The responded accepts that, given the applicant has had the care of his two stepdaughters and his biological children and there are no records of allegations or complaints being made against him, this is in the applicant’s favour.
We agree with this. Overall, this weighs strongly his favour and tends to counter concerns that the applicant poses a risk to the safety of children.

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

The applicant contends that there is no risk of repetition because he did not commit the offence is alleged in the first place.
The respondent accepts that, having regard to the applicants age and the period of time that has elapsed since the alleged conduct, the likelihood of any repetition is low. Despite this, the respondent further submits that given the seriousness of the alleged conduct, this is a case where the impact on children of such repetition, if it were to occur, would be extremely serious.
We accept this submission but, on balance, have formed the view that this factor weighs against the contention that the applicant poses a risk of harm to the safety of children. The reason why we have formed this view is that there is compelling evidence that there is no risk of repetition of the alleged misconduct.
It has been over 37 years since the allegations were made, the applicant has been in close contact with children in this intervening period. Notably, there is no evidence of allegations being made against him by children of any misconduct. To the contrary, there is evidence provided by his third wife and his adult children and stepchildren to the effect that there has never been any conduct that would have caused them concern. The applicant’s children and stepchildren all have children of their own. Their evidence is to the effect that the applicant has spent time with those children during school holidays and they have all spent time alone with the applicant. The applicant’s children state that they never had concerns about leaving their children with the applicant. This is significant given they have known about the allegations of sexual abuse against their stepsister from the beginning.

Any order of a court or Tribunal that is enforce in relation to the applicant (s 30(1)(i1))

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

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

The applicant provided evidence in support of his application, which we have carefully considered and is outlined above.
The respondent submits that much of the information has been put forward by the applicant is to demonstrate the veracity of the explanation he gave that the sexual abuse charges were fabricated. Despite this, the applicant was charged and committed for trial.
In written submissions, the respondent submitted that, while the applicant acknowledges the seriousness of the charges, he does not demonstrate insight into the possible impact of the alleged conduct on the complainant. It is also submitted that the applicant’s failure to acknowledge the serious implications of his refusal to identify the person who he alleges was in fact responsible for the abuse suffered by his daughter, raises serious concerns about the risk that the applicant poses or may impose to the safety of children in the future. This reluctance to name a suspected child abuser bespeaks in unwillingness or inability on the applicant to act protectively for child, including his own child.

In the oral submissions at the hearing, the respondent accepted that the applicant demonstrated insight about the seriousness of the allegations in his oral evidence. However, the respondent still raised concerns about the possibility, demonstrated by the applicant’s conduct in the past, that he would put himself or his family first before making an important protective disclosure.
In response, the applicant submitted that his action at the time was justified because of his fear of his father-in-law − he did not understand that disclosure could be made confidentially. He nonetheless submitted that he now understands the importance and he would certainly make these disclosures if this occurred in the future.
Overall, we are of the view that the information provided by the applicant (including his evidence at the hearing) supports his contention that he does not pose a risk to the safety of children.

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

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

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

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

Overall assessment of risk

The charges which were the subject of the risk assessment were withdrawn; there was no contested trial, and the applicant denies the allegations. He has not been convicted of any offences, nor has he been found guilty of those offences. We nonetheless give the possibility that the applicant may have committed the sexual abuse offences of which he was charged in 1988 significant weight.
Against this, we find that the other mandatory considerations support the applicant’s contention that he does not pose a risk.
It has been over 37 years since the charges and allegations of abuse, there is no record of any criminal offending since this time, and the applicant has had an extensive history of living with or working with children from this time and no allegations have been made against him. The respondent accepts that there is a low risk of repetition and the applicant’s character references, from his children and work colleagues, are strongly in his favour. The applicant denies the offending but has demonstrated insight into the seriousness of the offences in his evidence before the Tribunal. There is concern that the applicant failed to report the name of the alleged perpetrator who he suspected of abusing his daughter, however, we accept the applicant’s evidence that he genuinely feared his father-in-law. Relevantly, there is a contemporaneous record of his report of an assault at his house soon after the alleged abuse. The applicant gave evidence that he would report the name of the perpetrator if this happened today − his failure, which we accept falls short of what would be expected, was over 35 years ago. We accept the applicant’s evidence that he would do things differently today.
On balance, and having regard to the matters outlined above, we are not satisfied that the applicant poses a risk to the safety of children. This being the case, we must now consider the supplementary tests.

Supplementary tests for the grant of a clearance

Reasonable person test

Section 30(1A)(a) provides that the Tribunal cannot make an order which has the effect of enabling a person to work with children unless it is satisfied that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child related work.
The reasonable person test is an objective test. The “reasonable person” is taken to have knowledge of the applicant’s trigger offences or conduct and the surrounding circumstances of those offences or conduct, any other criminal history and the length of time since the offences and any expert assessment was made of the applicant (DAI v Children’s Guardian [2017] NSWCATAD 308 at [91]). DAI and other decisions of the Tribunal refer to VQB v The Secretary to the Department of Justice [2013] VCAT 789 in relation to similar provisions under the Victorian legislation, where the Tribunal found at [36] that the relevant provision required:

…the application of an objection standard based on the views of a reasonable person. 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.

This approach was also confirmed by the Supreme Court of Victoria, again considering similar provisions in the Victorian legislation, in PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 where Bell J stated at [57]:

I have strong reservations with the proposition that the reasonable person test can be equated with a ‘“pub test” for what might be considered reasonable in the circumstances’, as submitted for the Secretary and accepted by the deputy president. Having regard to the nature and gravity of the issues involved, I think that, at best, it is a distraction to apply the reasonable person test by reference to what people in a pub might consider to be reasonable in the circumstances. As was correctly stated earlier in the reasons of the deputy president, the ‘reasonable person test is an objective test ...[that] relies upon a “reasonable” person having knowledge of all of the facts and surrounding circumstances’, and it is safer simply to apply the test upon this basis.

In written submissions, the respondent submitted that the applicant’s lack insight, together with the seriousness of the offences and the failure of the applicant to disclose the other alleged perpetrator in 1990, was likely to lead a reasonable person with knowledge of these matters not to allow their child to have unsupervised contact with the applicant. It was submitted that the applicant did not meet this test. In oral submissions, the respondent conceded that there was evidence the applicant had demonstrated insight into the seriousness of the offences, but it was still submitted that given the seriousness of the offences, the applicant still would not pass this test.
We have come to a different view. In our view, a reasonable person, having regard to all of the above matters, would allow his or her child to have direct contract with the applicant unsupervised. This test has been satisfied.

Public interest test

The public interest test requires that before making an order that would enabling the applicant to work with children, the Tribunal must find that it is in the public interest to make such an order. The WWC Act does not specify the matters which must be considered but this term should “derive its content from the subject matter and the scope of the enactment in which it appears” (Hogan v Hinch (2011) 243 CLR 506 at [31]). In this regard, in assessing the public interest, the Tribunal must have regard to the paramount consideration set out in s 4 of the WWC Act, being the safety, welfare and well-being of children.
The respondent submits, and we accept, that the public interest is in the interests of the public at large, not merely the individual’s private interests. The respondent contends that the applicant’s previous employer was able to find casual employment for him that did not involve driving school buses and did not require a working with children check clearance. There is no evidence of a shortage of drivers and, given the applicant’s age, the possibility of his retirement and the seriousness of the offences, the public interest weighs against the applicant being given a clearance.
In response, the applicant submits that it is in the public interest for him to be able to have a working with children check clearance having regard his employment history, his desire to work (he has recently passed the bus driving test) and the importance of his role in providing a service to the community in driving school buses. He says there is a real shortage of bus drivers in his local community.
There may be a public interest in persons generally being engaged in work for which they possess appropriate skills and experience (ZZ v Secretary, Department of Justice [2013] VSC 267), widely cited by this Tribunal (for instance in DVV v Children’s Guardian [2020] NSWCATAD 237 at [91]). In this case, there is evidence from the applicant, which we accept, that there is a shortage of bus drivers in the country town in which he resides. He knows this because he lives in the community and has observed this to be the case. We accept this evidence.
In this case, we are satisfied that the public interest of the safety, welfare and well-being of children would not be compromised by the applicant being granted a clearance. This is because we find the applicant does not pose a risk to the safety of children and the public interest in the applicant driving buses where needed is not outweighed by the risk.
We therefore find that the applicant satisfies the public interest test.

Conclusion and orders

For the reasons set out above, we are satisfied that the decision of the respondent dated 11 February 2025 should be set aside and substituted with a decision that the applicant’s working with children check clearance be granted.

The Tribunal therefore makes the following order:

The decision of the respondent dated 11 February 2025 be set aside and substituted with a decision that the applicant’s working with children check clearance be granted.

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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: 18 November 2025

Medium Neutral Citation:	GXE v Children’s Guardian [2025] NSWCATAD 285
Hearing dates:	25 September 2025
Date of orders:	18 November 2025
Decision date:	18 November 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Redfern PSM, Senior Member A Limbury, General Member
Decision:	The decision of the respondent dated 11 February 2025 be set aside and substituted with a decision that the applicant’s working with children check clearance be granted.
Catchwords:	ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — jurisdiction following amendments under Child Protection (Working with Children) and Other Legislation Amendment Act 2025 — administrative review of refusal — whether a real and appreciable risk to the safety of children — serious allegations of historical sexual abuse — charges withdrawn – no other criminal record, charges or allegations made against the applicant PROCEDURE — admissibility of documents recording helpline reports – tender of documents authorised
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection Legislation Amendment (Children’s Guardian) Act 2013 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) and Other Legislation Amendment Act 2025 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children’s Guardian Act 2019 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Civil and Administrative Act 2013 (NSW)
Cases Cited:	Commissioner of Police v Eaton [2013] HCA 2 DAI v Children’s Guardian [2017] NSWCATAD 308 DVV v Children’s Guardian [2020] NSWCATAD 237 Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 Hogan v Hinch (2011) 243 CLR 506 Mulholland v AEC [2004] HCA 41 at [39]; 220 CLR 181 PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 VQB v The Secretary to the Department of Justice [2013] VCAT 789 ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited:	Explanatory Note to the Child Protection Legislation Amendment (Children’s Guardian) Bill 2013 Second reading speech, 5 August 2025 Hansard, p21
Category:	Principal judgment
Parties:	GXE (Applicant) The Children’s Guardian (Respondent)
Representation:	The Applicant (Self-represented) Solicitor: Crown Solicitor (Respondent) Counsel: J Curtin (Respondent)
File Number(s):	2025/00076902
Publication restriction:	With the exception of officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under sections 64(1)(a) and (1)(c) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.