GXI v Children's Guardian

[2025] NSWCATAD 280

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GXI v Children’s Guardian [2025] NSWCATAD 280

Hearing dates:

11 September 2025

Date of orders:

14 November 2025

Decision date:

14 November 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member
E Hayes, General Member

Decision:

The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is refused.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – application for an enabling order –applicant is a disqualified person having been convicted of a disqualifying offence (act of indecency)– whether applicant has displaced the statutory presumption that he poses a risk to the safety of children.

Legislation Cited:

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

Child Protection (Working with Children) and other Legislation Amendment Act 2025 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (ACT)

Crimes Act 1900 (NSW)

Domestic Violence Act 1986 (ACT)

Working with Vulnerable People (Background Checking) Act 2011 (ACT)

Cases Cited:

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

Briginshaw v Briginshaw (1938) 60 CLR 336

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

CXZ v Children’s Guardian [2020] NSWCA 338

Ex parte Tziniolis; Re Medical Practitioners Act (1996) 67 SR (NSW) 448

GVD v Children’s Guardian [2025] NSWCATAD 251

Lee v Health Care Complaints Commission [2012] NSWCA 80

M v M (1988) 166 CLR 69

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

None

Category:

Principal judgment

Parties:

GXI (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Crown Solicitor (Respondent)

File Number(s):

2025/00078957

Publication restriction:

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

REASONS FOR DECISION

Introduction

1. The Applicant in these proceedings is referred to as “GXI”. GXI is the Applicant’s pseudonym used in accordance with the order made by the Tribunal pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

2. The Applicant was charged with contravening s 92K(2) of the Crimes Act 1900 (ACT) (repealed) in that on 20 August 1990 in the Australian Capital Territory (ACT) he committed an act of indecency on a person < 16 years. On 12 February 1991 at the ACT Magistrates Court, the Applicant received a conditional release order in relation to that offence pursuant to s 556B of the Crimes Act 1900 (ACT) upon giving a recognizance for the sum of $2000 and subject to the Applicant being of good behaviour for 12 months (the 1990 offence).

3. On 17 April 2019, the Applicant applied to the Respondent for a working with children’s check clearance (Clearance) under the Child Protection (Working with Children) Act 2012 (NSW) (the Act). The Applicant applied for the Clearance on the basis that he was a volunteer with a sporting organisation and that whilst the work was not child related the organisation had requested the “check”.

4. On 22 May 2019, the Respondent sent the Applicant a Notice to Disqualified Person notifying him that it must not grant him a Clearance, because he was a disqualified person as the 1990 offence was a disqualifying offence.

5. Following the expiry of the five-year bar on the Applicant reapplying for a Clearance, the Applicant again applied on 29 January 2025. The Applicant applied for a volunteer clearance, nominating “Parent Volunteer- Other”.

6. On 10 February 2025, the Respondent sent the Applicant a letter notifying him that it must not grant him a Clearance, because the Applicant is a disqualified person due to the 1990 offence.

7. On 27 February 2025, the Applicant filed an application with the Tribunal. By consent, this application is treated by the Tribunal as a general application for an enabling order under s 28 of the Act (the Application). The effect of this is that the Applicant seeks a finding by the Tribunal that he does not pose a risk to children and that he be granted an enabling order pursuant to s 28 of the Act.

8. The Respondent opposes the Application.

Non-publication order

9. Pursuant to s 64(1)(a) of the NCAT Act, the Tribunal made an order that, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited.

10. The Tribunal is satisfied that in the circumstances of this case, it is desirable to make this order because if the order is not made, the identify of a victim or an alleged victim could be disclosed

11. It is noted that for the purposes of s 64 of the NCAT Act, 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.

Jurisdiction of the Tribunal

Amendment Act

12. Since these proceedings commenced, the Act has been amended by the Child Protection (Working with Children) and other Legislation Amendment Act 2025 (NSW) (Amendment Act). The Amendment Act removes the provisions enabling individuals to apply to the Tribunal for administrative review of the Respondent’s decisions in respect of a Clearance. The relevant sections of the Amendment Act commenced on 23 September 2025.

13. As a result, clause 27(1) of Schedule 3 of the Act now provides that clause 27 applies to an application for review made to the Tribunal but not finally determined before the commencement date (namely 23 September 2025). Clause 27(2) provides that an application for an enabling order made before the introduction date, which means the date on which the Bill for the Amendment Act was first introduced into Parliament (namely 5 August 2025), must be determined by the Tribunal as if the Amendment Act had not commenced.

14. In this case the Application was made to the Tribunal on 27 February 2025 and had not been finally determined before 23 September 2025. Therefore, the Tribunal is satisfied that it had jurisdiction in the matter prior to 23 September 2025 and that it retains jurisdiction to determine the Application as if the Amendment Act had not commenced.

15. Accordingly, the provisions of the Act referred to elsewhere in these Reasons for Decision are the provisions of the Act in force prior to 23 September 2025.

Legislation

16. The object of the Act is to protect children by requiring people to hold a Clearance if they engage in child-related work: see ss 3 and 28(1) of the Act. The safety, welfare, and well-being of children and, in particular, protecting them from abuse, is the paramount consideration under the Act: s 4.

17. Section 8(1) of the Act prohibits a person from engaging in child-related work unless the person holds the relevant clearance or there is a current application by the person to the Respondent for the relevant clearance. A breach of s 8(1) is an offence.

18. Section 18(1)(a) of the Act provides the Respondent must not grant a Clearance to “disqualified persons”, which term is relevantly defined to include:

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult

19. The word “conviction” is defined at s 5 of the Act to include a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

20. Clause 1(1)(e) of Schedule 2 to the Act specifies offences under the Crimes Act 1900 (NSW) and cl 1(1)(z) of Schedule 2 includes an offence under a law of another State or a Territory, that if committed in New South Wales, would constitute an offence of a kind listed in the clause. Clause 1(2) provides that the clause applies to convictions or proceedings for offences whether occurring before, on or after the commencement of the clause.

21. Section 28 of the Act permits the Tribunal to make an enabling order and relevantly provides:

(1)  The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

…

(3)  A disqualified person may make an application under this section only if—

(a)  the person has been refused a working with children check clearance, or

(b)  the person’s clearance has been cancelled under section 23,

because the person is a disqualified person.

(4)  The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5)  An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6)  If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children’s Guardian in accordance with the Tribunal’s order.

(7)  In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8)  An enabling order may not be made subject to conditions.

22. Section 30(1) of the Act sets out the considerations the Tribunal must take into account when deciding whether to grant an enabling order.

23. Section 30(1A) prohibits the Tribunal from making an enabling order unless satisfied that:

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

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

The hearing

24. This matter was heard by the Tribunal on 11 September 2025. The Applicant appeared by audio visual link and was self-represented. Mr Poberezny, the solicitor for the Respondent, appeared in person.

Applicant’s material

25. In support of the Application, the Applicant relied on his letter dated 26 May 2025 (May letter) (exhibit A1), a document headed Final Submission dated 11 August 2025 (August submission) (exhibit A2) and two character references (exhibit A3). The Applicant gave evidence and was cross-examined by Mr Poberezny. The Applicant made oral submissions to the Tribunal.

26. The documentary material relied upon by the Applicant included both evidence and submissions. The Tribunal has given appropriate weight to both the evidence and the submissions in the consideration of this matter.

Respondent’s material

27. The Respondent relied upon four separate bundles of documentary material in these proceedings as follows:

1. Respondent’s Evidence (exhibit R1);

2. Respondent’s Supplementary Bundle of Documents (exhibit R2);

3. Respondent’s Bundle of Additional Documents (exhibit R3); and

4. Respondent’s Bundle of Further Documents (exhibit R4).

28. The Respondent also relied on written submissions that were filed with the Tribunal on 8 September 2025 and Mr Poberezny made oral submissions at the hearing.

Objections to Respondent’s material

29. The Respondent’s Supplementary Bundle of Documents consisted of various documents, including documents relating to various allegations of criminal conduct and the bringing of criminal charges against the Applicant (the 1997/1998 allegations). The Applicant was charged in 1998 with four counts of committing an act of indecency on person < 16 years old. The Applicant’s first trial for these charges (first trial) ended in a mistrial. The Applicant was subsequently found not guilty at a second trial of all four counts by a jury in 2000 and acquitted (second trial).

30. The Applicant objected to the admission of material relating to the 1997/1998 allegations on the basis that he had been found “innocent” by a jury of his peers and accordingly that it was not appropriate for these matters to be taken into account in relation to the Application, some 30 years later.

31. The Tribunal had regard to the submissions made by the Applicant and also to those made by Mr Poberezny. It was the Respondent’s position that this material was clearly relevant to these proceedings in relation to the issue of whether the Applicant had discharged the statutory presumption that he posed a risk to the safety of children, even though the Respondent was not seeking that the Tribunal make a finding that the alleged conduct referred to in the material was proved to the civil standard.

32. In the circumstances of this matter and given the protective nature of the Tribunal’s jurisdiction under Part 4 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111 (FZ), per Young JA at [61], and the Tribunal’s approach to fact finding: BKE v Children’s Guardian [2015] NSWSC 523 (BKE), the Tribunal accepted that the material contained in the Respondent’s Supplementary Bundle of Documents was relevant to its consideration of this matter. Accordingly, the material was admitted into evidence (exhibit R2), subject to further consideration.

The Applicant’s position

33. The Applicant’s position was that the 1990 offence took place approximately 35 years ago, and that he continued to remain shameful for his actions in relation to that matter. He has no other criminal record and denied the further matters relied upon by the Respondent and contained in the Respondent’s Supplementary Bundle of Documents and Respondent’s Bundle of Further documents. The Applicant relied on his work history, his good character and the character references that he had provided to the Tribunal and submitted that given the time that had elapsed since the 1990 offence, he did not pose a risk to children and that the enabling order should be granted.

The Respondent’s position

34. The Respondent submitted that the Tribunal should conclude that the Applicant has not displaced the statutory presumption that he poses a real and appreciable risk to the safety of children, and the Application should be dismissed.

35. Additionally, it was submitted on behalf of the Respondent that the Tribunal should not grant the Applicant a Clearance as the Tribunal would not be satisfied that a reasonable person would allow the Applicant to have unsupervised access to their children in a work setting, and that granting the Clearance would be in the public interest. Accordingly, it was submitted by the Respondent that the Tribunal should dismiss the Application.

Consideration

Background

36. The Applicant is currently aged 62 years old, with two children and a stepdaughter from a previous marriage. The Applicant has been in a relationship with his current wife since 1999 and had been married to her for over 24 years. He is a retired public servant with over 44 years of work experience, including in senior positions managing teams of over 100 staff. He has represented the government internationally as well as working in remote communities within Australia. The Applicant continues to carry out paid work for a government agency in a part time capacity.

37. The Applicant has been a volunteer official in a sporting organisation since 2000, including as a senior official. It is now a requirement of that organisation that the Applicant obtains a Clearance to continue his volunteer work with them and to possibly expand his volunteering to other parts of Australia. The Applicant has never previously been required to supervise or train other volunteers of the sporting organisation under the age of 18 and has never held a Clearance under the Act.

38. The Applicant accepted that the 1990 offence is a disqualifying offence under the Act as specified in Schedule 2. The Applicant advised the Respondent that he had pleaded guilty to the 1990 offence at the first possible opportunity and he accepted that he is a disqualified person under the Act. Accordingly, the Tribunal is satisfied that the 1990 offence (Disqualifying Offence) is a disqualifying offence for the purpose of the Act and that the Applicant is a disqualified person. The Respondent has refused the Applicant’s request for a Clearance, and we find that the provisions in s 28(3)(a) of the Act are satisfied.

Circumstances of the Disqualifying Offence

39. The material before the Tribunal included a copy of the Information for the Disqualifying Offence, the Statement of Facts and the police brief of evidence, including the statement of the victim and her mother, together with a copy of the record of conversation between the Applicant and police that took place on 27 August 1990.

Documentary evidence

Background to offending

40. The documentary material indicated that at the time of the offending on 20 August 1990, the Applicant was aged 27. The victim was aged 13 and according to her statement was a school student, then in Year 7, and was a neighbour of the Applicant and his family and had previously babysat the Applicant’s children. On the day of the offending, the victim had gone to the Applicant’s home as she had been requested to babysit the Applicant’s daughters, who were then aged 4 and 6. The Applicant’s wife was interstate for a family funeral and whilst the Applicant had taken time off from his day job, he still needed to work at night. At about 5.20 pm, the Applicant placed his daughters into the bath and then went to the family room of the house where the victim was seated and sat down in a chair. The Applicant did not dispute any of these matters and the Tribunal is satisfied in relation to them.

Criminal proceedings

41. It was also not in dispute that the Applicant subsequently pleaded guilty in relation to the incident, namely to the offence of commit an act of indecency upon a person, namely the 13-year-old victim. The Applicant accepted that he received a conditional release order for the Disqualifying Offence pursuant to s 556B of the Crimes Act 1900 (ACT) upon giving a recognizance for the sum of $2000 and subject to being of good behaviour for 12 months.

42. There were some matters referred to in the Statement of Facts that the Applicant either did not admit or could not recall. The Respondent fairly conceded that it was not clear from the available material that the Applicant had pleaded guilty to the Disqualifying Offence on the basis of the Statement of Facts that was before the Tribunal.

Issues as to Applicant’s conduct relating to the Disqualifying Offence

43. The Statement of Facts records that after the Applicant sat in the chair in the family room, he then called the victim over and she initially declined. The Applicant then took hold of the victim’s right hand and pulled her towards him, and she sat across his legs. The victim says in her statement that the Applicant “grabbed” her hand and “pulled” her, so that she had to stand up and take at least one step towards him and that he then “pulled” her onto his lap.

44. The Applicant then placed his left hand on the inside of the t-shirt the victim was wearing and rubbed and squeezed her left breast. The victim stated that the Applicant’s touching of her breast did not hurt her, but she thought that she had to find some way to get away and she was “scared”.

45. The Applicant then took his hand away from her breast and moved it to the area of her right thigh on top of her jeans. The Applicant then rubbed his hand on the victim’s thigh and also in the area of her vagina. The victim said in her statement that she did not like what he was doing and wanted to get out and go. The Statement of Facts and the victim’s statement record that the Applicant then said words similar to “I should put the kids in the bath more often” before kissing the victim on her cheek. She then got up after she heard one of the girls in the bath screaming out. After the girls had been bathed, the victim stayed for dinner with them and then returned to her home. The following day, the victim informed her mother of the specific details of what had happened. Police were subsequently notified and statements obtained from the victim and her mother.

43. The Applicant was interviewed by police on 27 August 1990 and made partial admissions in relation to the offending. He was asked about the allegation and his alleged involvement in the matter and said, “I was involved, I didn’t use any force, I don’t know why it happened.”

44. The Applicant admitted to police that he had said to the victim something like “Why don’t you come over here” and that the victim had said “no.” He said that he kept his “hand out” and said something like “’Go on’ then she put her hand in mine”. He said he “wasn’t forcing her or anything and then she came and sat on my knee.” He admitted to “fondling” her left breast and putting his hand under her bra. The Applicant told police that “I then moved my hand down and started rubbing her right thigh. I don’t think I touched her vagina but I would’ve been close and she was wearing jeans.”

45. When asked by police if he could give a reason for rubbing his hand on the victim’s breast or crotch area, the Applicant replied “No, I’ve already seen a Psychiatrist about that.” When asked if he had taken hold of the victim’s hand and pulled her towards him, he said that this was not correct. He said that he had asked her to come over and may have wiggled his finger when he had his hand out but that he “did not force her.” The Applicant told police that he could not recall saying, “I should put the kids in the bath more often” but acknowledged that he had given her a kiss but that he could not recall the conversation “if there was any.” He said that he knew as soon it happened he became frightened and “asked her not to tell anybody knowing what the circumstances would be.”

Applicant’s evidence

49. In cross-examination, the Applicant indicated that he could not now recall exactly what had happened on the day of the offending but said that he believed what he had said to police in the record of interview to be the truth. He gave evidence that there was “no way” that he would have used force during the offending and that he had held out his hand to the victim as a form of invitation and not force. He stated that that it was such a long time since the incident occurred and that he did not have any recollection of saying to the victim “I should put the kids in the bath more often.”

50. The Applicant’s evidence before the Tribunal was that he had pleaded guilty to the Disqualifying Offence at the first opportunity but did not know what information was relied upon for sentencing. The Applicant gave evidence that his offence was a very serious matter and that the penalty imposed was appropriate when compared to other matters.

51. In his written material, the Applicant indicated that he was “regretful” of his actions and considered himself to have made “a very foolish mistake” many years ago. He said that he hoped that the incident did not cause the victim “long term mental health issues” and that she “has been able to have a fulfilled life.” He reiterated such sentiments in his oral evidence.

Consideration

52. The Disqualifying Offence occurred some 35 years ago, and the Tribunal accepts the Applicant’s evidence that he cannot now recall many of the details of the offending conduct, including the conversations that took place during the incident. As conceded by the Respondent, it is not clear whether the Applicant was sentenced on the basis of the Statement of Facts that was in evidence before the Tribunal.

53. The Tribunal had the benefit of the police brief of evidence which included the victim’s statement that was made four days after the Disqualifying Offence together with the record of conversation between police and the Applicant which was conducted seven days after the offence was committed. The Tribunal also had regard to the documentary material which indicates that the Applicant was also charged with common assault pursuant to s 26 of the Crimes Act 1900 (ACT) arising out of the same facts as the Disqualifying Offence and that the police offered no evidence to the court in relation to that charge and it was dismissed.

54. The Tribunal is satisfied that the Applicant committed the Disqualifying Offence and accepts his evidence that he did not use force against the victim. However having regard to the victim’s statement, we are satisfied that even though the Applicant did not use force, the victim believed that she was being compelled by the Applicant to sit on his lap; that she was thinking that she had find some way to get away from him; that she was scared; and that she did not like what he was doing.

55. The Applicant did not deny saying to the victim, “I should put the kids in the bath more often” but rather said in the record of conversation with police and in his evidence before the Tribunal that he did not recall saying that, and that whilst he knew that he gave her a kiss, he could not “recall the conversation if there was any”. In light of the victim’s statement made only four days after the Disqualifying Offence, we are satisfied that the Applicant did use those words to her. We are also satisfied from the record of conversation with police that the Applicant told the victim not to tell anybody about the incident.

Further matters relied upon by the Respondent

Protection Order pursuant to the Domestic Violence Act 1986 (ACT) (the Domestic Violence matters)

56. The Respondent relied on documentary material (exhibit R4) indicating that on 19 August 1998 the Applicant’s then wife applied for a protection order against the Applicant pursuant to the Domestic Violence Act 1986 (ACT). An interim protection order was made on that date until 26 August 1998 when the matter was heard in the Magistrate’s Court ACT.

57. The annexure to the application for the protective orders in those matters sets out the facts preceding the application. It was not disputed by the Applicant that he had separated from his then wife in April 1997 and continued residing under the same roof with her until he left the family home in January 1998. The annexure sets out an incident on 18 August 1998 in which it was alleged by the Applicant’s then wife, that when attending the family home to pick up the three children, there was an argument between her and the Applicant, which was witnessed by the children, who were becoming upset.

58. The documentary evidence indicates that on 26 August 1998, the ACT Magistrates Court made a two-year protection order against the Applicant. The Court also ordered that any firearms licence held by the Applicant be suspended. It appears from the documentary material that the Applicant did not attend that hearing and subsequently an application was made to revoke that order. Further interim protection orders were then made against the Applicant, and the documentary evidence indicates that on 23 February 1999, a one-year protection order was made by the Magistrates Court against the Applicant by consent and without admissions.

Applicant’s evidence

59. In his May letter, the Applicant said that throughout 1997, he had been involved in a bitter separation from his then wife and they had subsequently divorced. He stated that he strongly believes to this day that his ex-wife would have said anything in an attempt to have him in trouble with the law.

60. In cross-examination, the Applicant said that he did not receive material relating to the Domestic Violence matters and as a result did not attend the hearings. He said that he received the protective order at his home. He stated that he then spoke to the Registrar as he wanted to put up a case and defend himself and was told not to waste his time. He stated that at the time he was quite tired of the situation and the divorce proceedings and basically “gave up” in relation to both. When it was noted by Mr Poberezny, that it appeared that the Applicant was legally represented in relation to the protection order made on 23 February 1999, the Applicant said that he could have been but could not recall it.

Consideration

61. The Tribunal accepts from the documentary evidence that a number of interim protection orders and protection orders were made against the Applicant in respect of his now ex-wife in the period from August 1998 to February 1999. The Tribunal is not satisfied that the Applicant attended the court proceedings on 26 August 1998 at which time the initial protection order was made or any previous proceedings. The Tribunal is satisfied that a revocation of that order was subsequently sought and that on 23 February 1999, a varied protection order was made against the Applicant in relation to his ex-wife. The Tribunal accepts from the documentary evidence that the Applicant was legally represented at that time and that whilst a protection order made on that date, it was made by consent and “without admissions”.

62. Whilst the Tribunal is satisfied that a number of protection orders, both interim and final, were made against him, it appears from the evidence that these orders were all made following the separation of the Applicant and his then wife. The only incidents involving children were said to have occurred on 18 August 1998 and involved the children being present during verbal arguments between their parents and during which they were described as “becoming upset”.

63. The Tribunal accepts that the Applicant was not present during the initial hearings, including the hearing at which the first protection order was made on 26 August 1998. The Applicant did attend subsequent hearings, and an amended protection order was made on 23 February 1999, at which time it appears that both parties were legally represented. The Tribunal accepts that this order was made by consent and without admissions.

64. In oral submissions, the Respondent submitted that the Tribunal should have regard to this conduct as it demonstrates that the Applicant failed to act protectively in front of children. In the circumstances of this matter, particularly where the Applicant was not present at the initial hearings relating to the orders, and where the final protection order was made by consent and without admissions, the Tribunal cannot be satisfied to the relevant standard that given the Applicant’s initial absences, that the evidence was sufficiently tested to establish on the balance of probabilities that the Applicant did in fact fail to act protectively in front of his children. Accordingly, whilst it is accepted that protection orders were made in relation to the Domestic Violence matters, the Tribunal has no further regard to the Applicant’s alleged conduct in those matters in its consideration of this Application.

Allegations from 1997 and 1998

65. As referred to previously, the Respondent also relied upon a number of allegations that were said to have occurred in 1997 and 1998 (the 1997/1998 allegations) which it submitted were similar in nature to the Disqualifying Offence. The documentary material includes the police brief of evidence (part exhibit R2) which indicates that the Applicant’s then stepdaughter (the complainant) participated in a taped record of conversation with police on 10 September 1998, at which time she was aged 13. The complainant reported a number of instances of having been touched by the Applicant between about November 1997 and the beginning of 1998 at which time she was aged 12, and when the Applicant was still living at the family home.

66. A transcript of the complainant’s interview with the police was included in the police brief of evidence. The complainant told police that after the first time the touching occurred, the Applicant had said to her “This is our little secret” and that she was scared of him. The complainant said that after the first incident, which she said had occurred during the school holidays, the Applicant started touching her breasts under her clothing “most nights…about four times a week”.

67. The Applicant participated in a taped record of interview with police on 13 October 1998 and a copy of the transcript of that interview is included in the police brief of evidence. In the course of the interview, the Applicant denied the allegations and said that he did not understand why the complainant would have made them. He said that after he and his then wife had legally separated in 1997 , they had begun largely sleeping in separate bedrooms for about six months before the Applicant moved out of the family home in January 1998. He referred to mediation relating to his property settlement having failed and to restraining orders which prevented him from seeing the children.

68. Following this interview with police, the Applicant was charged with four counts of commit act of indecency on person < 16 years, By the time of the second trial, the date ranges for the alleged offences had been narrowed and it was alleged that on separate days between December 1997 and January 1998, the Applicant had:

1. entered the complainant’s bedroom, guided her towards the wall, and cupped her breasts with his hands. The complainant stated that at the time of the alleged incident she was not wearing clothing on her upper body.

2. entered the complainant’s bedroom whilst she was lying in bed, took the blankets off her and placed both his hands up her top. The Applicant was then alleged to have cupped and stroked both of the complainant’s breasts.

3. entered the complainant’s bedroom sometime during the evening or nighttime, guided her towards the wall, placed both his hands up her top and stroked and cupped her breasts.

4. entered the complainant’s bedroom, placed his hands up her skirt and insider her underpants. He then stroked her vagina from side to side.

69. The Applicant pleaded not guilty to each of the four counts. The Respondent relied upon a transcript of the second trial (part exhibit R2). This transcript includes reference to a committal hearing and to the first trial. Also included in the transcript as a discussion between counsel and the trial judge which refers to the committal and the first trial. There is also discussion about the complainant having already been examined and cross-examined twice in previous proceedings. The complainant was referred to in the transcript as being aged 15 at the time of the second trial.

70. It would seem from the correspondence produced by the Respondent (part exhibit R3) that the first trial was conducted in May 2000 and resulted in a mistrial. No reasons were provided for the mistrial and no transcript of either the committal proceedings or the first trial was before the Tribunal.

71. In the transcript of the second trial, the trial judge notes that the complainant was a person who was obliged to give her evidence in the matter by way of closed-circuit television, unless she consented otherwise and the court so ordered. The Crown sought an order, which was granted by the trial judge, for the complainant to give her evidence in court, and noted that the complainant had given “her evidence in open court on the last occasion”. The transcript indicates that the second trial proceeded over two days and that both the complainant and the Applicant gave evidence and were cross-examined. Their evidence is set out in the transcript. It was not in dispute that the jury ultimately delivered verdicts of not guilty in relation to each of the four counts and that the Applicant was discharged.

72. In his evidence before the Tribunal and in his submissions, the Applicant continued to deny the 1997/1998 allegations and stated that his position was supported by a jury of his peers. The Applicant said in his August submission document that the entire period of his life with his “ex-wife on reflection, was one of the worst”. He went on to say that he has always strongly denied these allegations “and found these allegations were being used to support a divorce application from [his] ex-wife”.

73. The Respondent acknowledged that the Applicant had been acquitted of each of the four counts at the second trial.

74. The 1997/1998 allegations will be further considered in relation to the criteria set out in s 30(1) of the Act.

Does the Applicant pose a risk to the safety of children?

75. Section 28 of the Act does not specify the test to be applied in determining whether to make an enabling order. As previously referred to, in cases where an enabling order is sought, s 28(7) of the  Act provides that the Tribunal must presume (unless proven to the contrary) that the applicant poses a risk to the safety of children. The Applicant therefore has the burden of satisfying the Tribunal that he does not pose a risk to the safety of children. Section 5B of the Act defines risk to the safety of children to be “a real and appreciable risk”. If the Applicant does not discharge his onus, the Tribunal cannot grant an enabling order.

76. The standard to which the Tribunal must be satisfied before making a positive finding in relation to an allegation is the civil standard, that is, on the balance of probabilities, and not the criminal standard: Office of the Children’s Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[17], subject to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). The Briginshaw principle can broadly be described as a standard of satisfaction to be reached where serious allegations are concerned. Put simply, serious allegations with serious consequences require more compelling evidence for the decision maker to reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist.

77. An enabling order cannot be subject to conditions and the grant of such an order would permit the Applicant to potentially engage in a range of child related work. As a consequence, the assessment of risk the Tribunal is to perform is to be considered in the context of all relevant child related work.

78. The Tribunal’s approach to fact finding was set out in BKE, after discussing M v M (1988) 166 CLR 69, as follows (at [33]):

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.

79. This approach was confirmed by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35] and CXZ v Children’s Guardian [2020] NSWCA 338 (CXZ) at [7(a)-(d)], [28] and [57]. The Tribunal agrees with the analysis set out by the Tribunal in GVD v Children’s Guardian [2025] NSWCATAD 251 at [56-58] as follows:

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

57.   A positive finding by the Tribunal that alleged conduct has taken place will generally be determinative of an application: CFW at [14]-[15], per Justice Harrison:

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

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

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

Consideration of s 30(1) criteria

(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

80. As set out above, we have found that the Applicant pleaded guilty and was sentenced in relation to the Disqualifying Offence. We have also made findings in relation to the Applicant’s conduct in relation to that offending.

81. We are satisfied that the Disqualifying Offence is serious as it involved the Applicant touching a 13-year-old female child’s breast underneath her bra and then touching her thigh and around her vagina, as well as kissing her on the cheek. The Applicant told the victim that he should “put the kids in the bath more often” and later said that the victim should not tell anyone about what had happened. Whilst the Tribunal accepts that the Applicant did not use physical force against the victim, we are satisfied that she was harmed by the Applicant’s conduct, insofar as she was scared, thinking that she had to find some way of getting away and that she did not like what he was doing.

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

82. The Disqualifying Offence occurred on 20 August 1990, some 35 years ago. It was not in dispute that the Applicant has not been found guilty of any other criminal offences since that time.

83. The Respondent also sought to rely upon the Applicant’s conduct relating to the 1997/1998 allegations which were said to have taken place some 27 to 28 years ago.

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

84. The Applicant was aged 27 at the time of the Disqualifying Offence and 34 at the time of the 1997/1998 allegations.

(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: and

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

85. The victim in the Disqualifying Offence was aged 13 at that time and the Applicant was some 14 years older. The Tribunal accepts the Respondent’s submission that the victim was vulnerable, not only because of her age but also because she was alone with the Applicant in the family room of his home, whilst his two daughters, then aged 4 and 6, were in the bathroom having a bath. The victim had been engaged by the Applicant and his then wife to babysit the children as the Applicant’s then wife was interstate.

86. The Tribunal accepts that the victim was working for the Applicant as a babysitter at the time of the offence and as a consequence, there was a substantial power imbalance between them, and that this coupled with the victim’s inherent vulnerability given her age and isolation at the Applicant’s home, increases the seriousness of the Disqualifying Offence.

87. The Applicant was approximately 22 years older than the complainant in the 1997/1998 allegations and we are satisfied that she would be considered vulnerable at this time as she was aged 12 and the Applicant was her stepfather.

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

88. Having regard to all of the material before the Tribunal, we are satisfied that the Applicant knew that both the victim in the Disqualifying Offence and the complainant in the 1997/1998 allegations were children at the relevant time.

(g) the person’s present age,

89. At the time of the hearing, the Applicant was aged 62.

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

90. The Tribunal has already made findings that the Disqualifying Offence was serious and that the Applicant has not been found guilty or convicted of any further criminal matters.

91. The 1997/1998 allegations will be further considered below.

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

92. The evidence before the Tribunal did not disclose any explanation from the Applicant for his conduct in relation to the Disqualifying Offence, nor did he provide the Tribunal with any medical expert evidence in relation to the risk he poses to the safety of children.

93. In response to a question during the record of conversation with police on 27 August 1990, the Applicant was asked if he could give any reasons as to why he had rubbed his hand on the victim’s breast or crotch area and said “No, I’ve already seen a Psychiatrist about that.” It appears that the Applicant told police the name of the psychiatrist at the time, but the name has been redacted from the transcript before the Tribunal. Following a request for information from the Respondent on 19 May 2025, the Applicant responded that “[u]nfortunately due to the period of time that has lapsed since the incident occurred, I do recall any name of a psychiatrist or knowledge of the content of any meetings” and apologised that he could not be of assistance. In his evidence, the Applicant clarified that there was an error in his response, and it was meant to say that he did not recall the name of the psychiatrist.

94. In response to questions from the Tribunal, the Applicant stated that he could not now recall seeing the psychiatrist or how he had come to see him but thought that his ex-wife may have arranged it. He could not recall how many times he had seen the psychiatrist and whether it was one or two times. The Applicant said that he had not seen a psychiatrist or psychologist after that time.

95. This was consistent with his documentary evidence in which the Applicant said that he had not sought any consultations from mental health professionals in support of the Application to assess his mental capacity as he strongly believes that his actions and behaviours over the last 35 years can be “judged by [his] peers as normal and acceptable to the community at large”.

96. In oral submissions, the Applicant said that if he had not met everything that was required of him in the Application, he could not see how he could, given that the Disqualifying Offence occurred more than 35 years ago.

97. In turn, it was submitted for the Respondent that the Applicant’s response to police in the record of conversation that he could not provide a reason for his conduct was important in relation to the assessment of future risk to children. It was submitted that if the Applicant could not provide an explanation for his offending conduct, how could an assessment be made as to whether such conduct might happen again. It was submitted that there were things that the Applicant could have done in relation to the Application, such as explaining the reasons for his offending or providing medical evidence in relation to the risk he posed to children. It was submitted that such evidence might have given insight into the Applicant’s conduct but that no such material had been provided.

98. In his submissions in reply, the Applicant again submitted that he did not know why the offending conduct had occurred but referred to the high level of interest rates and his work load at the time. The Applicant went on to submit that this was not an explanation that was acceptable and that he did not blame anyone else but himself. He acknowledged that he understood the legislation and the onus on him and that it was up to the Tribunal to decide the matter.

99. Whilst the Tribunal accepts that the Applicant made reference in his documentary evidence to issues such as the high interest rates and to having worked multiple jobs during his previous marriage, he did not link these to his offending conduct in his evidence or indicate that they contributed to his offending. Having regard to the available evidence, the Tribunal accepts that in the period of some seven days between the Disqualifying Offence and his participation in the record of conversation with police, the Applicant had seen a psychiatrist on at least one occasion but was unable to provide any reason for his offending conduct, even shortly afterwards.

100. In the course of this Application, no medical evidence of any kind was adduced by the Applicant and he gave evidence that he had not further consulted a psychiatrist or psychologist and moreover had not consulted any mental health practitioner in support of the Application. Other than having seen a psychiatrist shortly after his offending, there was no evidence that the Applicant had received treatment or undertaken counselling or courses in relation to his offending. There was no evidence that following his record of conversation with police some 35 years ago, that the Applicant had given any consideration whatsoever to the reasons for his offending. Whilst the Tribunal accepts that the Applicant is remorseful for his conduct, he did not demonstrate any insight as to why an explanation for his conduct might be of assistance in ensuring that the offending conduct would not reoccur.

101. The Tribunal is concerned that given the sexualised nature of his offending against a 13-year-old babysitter, that the Applicant has never provided an explanation for his offending conduct and in his evidence before the Tribunal, he had no recollection of his consultation with the psychiatrist that he saw shortly after the Disqualifying Offence. The Applicant was unable to provide any reasons or insight into his offending conduct and merely relied on the passage of time since the Disqualifying Offence. Whilst there is no requirement for the Applicant to adduce expert evidence for the Application, such evidence may have been of assistance to the Tribunal, especially given that the Applicant had no explanation for his conduct in relation to the Disqualifying Offence.

102. The Tribunal is satisfied that if the Applicant’s offending conduct was to be repeated, particularly in relation to a child, it would have a very significant impact on that child.

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

103. There was no evidence before this Tribunal of any court or tribunal orders presently in force in relation to the Applicant.

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

104. The Tribunal has had regard to the documentary material provided by the Applicant, together with his evidence in the proceedings. The Applicant relied upon two character references from colleagues from his sporting organisation who hold senior positions in that organisation and with who he has volunteered with for numerous years. The Applicant submitted that these references are recognition of his attitude and skills when acting as a volunteer in that sporting organisation

105. The first character references indicates that the author was aware that the reference was to be relied upon in support of the Application and speaks highly of the Applicant, both in relation to his involvement with the sporting organisation and in a personal capacity. The author indicates having full confidence in the Applicant’s ability to undertake any role involving children in a safe and appropriate manner. Whilst the second character reference is addressed to the Tribunal, it makes no reference to the nature of the Application or to the Applicant working with children. Neither of the authors of the character references gave evidence before the Tribunal and there is no indication on the face of the references that the authors were aware of the Disqualifying Offence or the 1997/1998 allegations and had been provided with the full details of either matter.

106. In the circumstances, whilst the Tribunal accepts the character references insofar as they relate to the Applicant’s skills in his volunteer work, we give no weight to the references in our consideration of whether the Applicant poses a real and appreciable risk to the safety of children.

107. Although there was no evidence from the Applicant’s current wife, the Tribunal accepts the Applicant’s evidence that he and his wife have been in a relationship for some 26 years and married for 24 years and that he believes that it has been a wonderful and loving life for them both. The Tribunal also accepts that the Applicant has an excellent family relationship with his mother and two brothers and has held a number of senior positions as a public servant.

108. The Tribunal also accepts that the Applicant has worked as a volunteer in a sporting organisation for over 20 years and is viewed positively by senior members of that organisation. We accept the Applicant’s contention that he finds this volunteer work to be a healthy exercise for him, given that he has retired from full time employment and that it permits him to continually engage with people of similar interest and provides him with a purpose and supports his health.

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

109. The Tribunal has had regard to the material produced pursuant to s 36A and accepts that the Applicant has been issued a negative notice under the Working with Vulnerable People (Background Checking) Act 2011 (ACT) as a consequence of the Disqualifying Offence.

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

Domestic Violence matters

110. For the reasons outlined above, the Tribunal has determined to give no further consideration to the Domestic Violence matters in this Application.

The 1997/1998 allegations

111. As referred to previously, the Respondent acknowledged that the Applicant denies the 1997/1998 allegations and that he was acquitted of the criminal charges following a trial by jury in 2000. Mr Poberezny confirmed that the Respondent was not seeking a finding by the Tribunal that the allegations were made out on the civil standard. Instead, the Respondent submitted that the Tribunal would take into account the “possibility” of the truth of the 1997/1998 allegations when considering whether the Applicant has rebutted the presumption of risk.

112. It is the Applicant’s view that the allegations are not true and that they arose in the context of a bitter separation and subsequent divorce from ex-wife.

Consideration of 1997/1998 allegations

113. Whilst it is acknowledged that the Respondent did not seek a finding that these allegations were made out, for the sake of completeness, we are not satisfied on the basis of the available evidence that the 1997/1998 allegations have been made out on the civil standard.

114. As referred to above, the Respondent submitted that the Tribunal would take into account the possibility of the truth of the 1997/1998 allegations when considering whether the Applicant has rebutted the presumption of risk. In considering this issue, the Tribunal has regard to the Applicant’s evidence that his ex-wife would have said “anything” in an attempt to have him in trouble with the law. However, the complainant in the 1997/1998 allegations was not the Applicant’s ex-wife but his stepdaughter, albeit the daughter of his ex-wife.

115. We are satisfied that the complainant participated in a recorded conversation with police in relation to the allegations in September 1999, at which time she was aged 13 and statements were also obtained from her ex-boyfriend and from her mother in relation to disclosures made to them. As previously referred to, the transcript of the second trial establishes that whilst she was not obliged to do so, the complainant had given her evidence and been cross-examined in person on two previous occasions, apparently at the committal hearing and at the first trial. She did so again at the second trial, at which time she was aged 15.

116. Having regard to the documentary material, the Tribunal accepts the following submissions made on behalf of the Respondent:

1. That there were similarities between the Applicant’s admitted conduct in the Disqualifying Offence and those in the 1997/1998 allegations, including that the victim and the complainant in those matters were both females aged 13 and 12 respectively and the conduct and alleged conduct in both matters included sexualised touching of a similar nature in a domestic environment.

2. The prosecuting authority had considered that there was sufficient evidence to prosecute four counts relating to the 1887/1998 allegations and that following a committal hearing, the Applicant was committed for trial, and after the first trial which resulted in a mistrial, the prosecuting authority initiated a second trial.

3. The complaint was relatively consistent in her allegations that the Applicant had sexually touched her on multiple occasions, including in her dealings with police and in her evidence at the second trial. The transcript of the second trial records that the complainant denied during cross-examination that the various allegations did not happen.

117. In the circumstances, the Tribunal is unable to be affirmatively satisfied that the 1997/1998 allegations, or at least some of those allegations, did not occur. Accordingly, the Tribunal concludes that given the circumstances surrounding these allegations, they are relevant to our consideration of the Application, and whether the existence of a risk to children by the Applicant has been disproven.

Passage of time

118. The Applicant strongly relies on the passage of time since the Disqualifying Offence and said that he appreciated the need for matters such as his to be carefully considered by the Respondent. He went on to say in his August letter, “I also consider with the time that has elapsed, evidence of my character over the past 35 years is a true reflection of myself that can be trusted and poses no risk to any other person regardless of their age”.

119. The Tribunal accepts that all of the conduct relied upon by the Respondent relates to the period from 1990 to 1998, which is at least 27 years ago. We accept that the Applicant has not been found guilty of any offences other than the Disqualifying Offence and that this was 35 years ago. However, the Tribunal has had regard to the decisions of Lee v Health Care Complaints Commission [2012] NSWCA 80 and Ex parte Tziniolis; Re Medical Practitioners Act (1996) 67 SR (NSW) 448 that were referred to in the Respondent’s written submissions. Whilst these decisions were in relation to disciplinary matters, the Tribunal is satisfied that the principles are applicable to this Application and that the mere passing of time does not it itself demonstrate that the Applicant does not currently pose a risk to the safety of children.

Conclusion

120. The Application might be considered somewhat unusual in that the Disqualifying Offence took place in 1990 and other than the 1997/1998 allegations of which he was acquitted, the Applicant has not faced or been found guilty of any other criminal offences. However, as previously found, the Disqualifying Offence was a serious offence involving the sexualised touching of a 13-year-old child who was babysitting his children at the time and which caused harm to her.

121. The 1997/1999 allegations similarly related to the sexualised touching of a 12 year old child by the Applicant and whilst the Tribunal has not found the allegations to have been proved, we are satisfied that in the context of the Application that the circumstances surrounding these allegations are matters to be taken into account when considering whether the Applicant has rebutted the presumption that he poses a risk to children.

120. Of particular concern, whilst it has been 35 years since the commission of the Disqualifying Offence, during which it is accepted that the Applicant has held senior public sector positions, volunteering roles and been happily married to his current wife for over 24 years, the Applicant is still unable to provide the Tribunal with the reason for this offending conduct.

121. Whilst the Applicant saw a psychiatrist very shortly after the commission of the offence, he was unable to tell police even within a week, or even less, after that consultation why he had committed the Disqualifying Offence. In his evidence before the Tribunal, he was unable to recall anything about his engagement with that psychiatrist and other than a reference in his final oral submissions to his workload and high interest rates, he was not able to provide any explanation for his offending conduct.

122. The Applicant gave evidence that he had not consulted with any mental health practitioners in the intervening period and there was no evidence before the Tribunal that he had participated in any counselling or therapy in relation to his offending. The Applicant did not adduce any expert medical evidence in relation to the risk that he may currently pose to the safety of children.

123. Section 28(7) of the Act provides that it is presumed, unless the Applicant proves to the contrary, that he poses a risk to children. Having regard to the s 30 criteria and all the available evidence and material, the Tribunal is not satisfied that the Applicant has displaced that presumption. Accordingly, it follows that the Applicant does pose a risk to the safety of children and the Tribunal is satisfied that such risk is real and appreciable. This would be the position, even if the Tribunal only had regard to the Disqualifying Offence and had no regard to the 1997/1998 allegations.

124. In light of this finding, it is not necessary for the Tribunal to consider the matters in s 30(1A) of the Act. However, it is noted that that even if the Tribunal had been satisfied that the Applicant had displaced the statutory presumption and had made a positive finding that  he did not currently pose a risk to the safety of children, the Tribunal would not have been satisfied of the matters in s 30(1A) of the Act.

125. Such a position would have been reached having regard to the circumstances of the Disqualifying Offence, in particular the sexual nature of the offending and the Applicant’s failure to provide an explanation for this conduct or to produce any expert evidence in relation to his risk. On this basis, notwithstanding the passage of time, the Tribunal would not have been 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.

126. The Tribunal has had regard to the Applicant’s evidence that in his work as a volunteer official he has never been required to supervise or train an official under 18 and is unlikely to do so in the future. However, as previously referred to, an enabling order cannot be subject to conditions and the grant of such an order would permit the Applicant to potentially engage in a range of child related work. Accordingly, the assessment of risk in this matter has been considered in the context of all relevant child related work.

127. The Tribunal accepts the positive benefits to the Applicant in his work as a volunteer official and that whilst he is unlikely to supervise or train children, that it is a requirement of that sporting organisation that he has a Clearance. The exercise with which the Tribunal is concerned is protective not punitive and the Tribunal has had primary regard to the paramount consideration in the operation of the Act, being the safety, welfare and well-being of children and, in particular, protecting them from child abuse.

128. For the reasons set out above, it follows that the Application must be refused.

Order

131. The application for an enabling order under s 28(1) of the Act is refused.

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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: 14 November 2025