Sunol v Children's Guardian

[2024] NSWCATAD 319

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sunol v Children’s Guardian [2024] NSWCATAD 319

Hearing dates:

22 and 23 April 2024

Date of orders:

30 October 2024 and 25 November 2024

Decision date:

26 November 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member
E Hayes, General Member

Decision:

(1) The decision of the Children’s Guardian dated 3 August 2023 to refuse to grant the applicant a working with children check clearance is affirmed.

(2) Pursuant to s 64(3) of the Civil and Administrative Tribunal Act 2013, order 2 in orders made on 23 April 2024 is varied to read as follows: “The disclosure of the name of any child contained in documents lodged with the Tribunal in these proceedings is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.”

(3) Pursuant to s 64(3) of the Civil and Administrative Tribunal Act 2013, order 3 in orders made on 23 April 2024 is varied to read as follows: “The publication of matters contained in the report of a Consultant and Forensic Psychiatrist lodged with the Tribunal in relation to these proceedings is prohibited pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013.”

(4) Order (4) made by the Tribunal on 30 October 2024 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 is vacated, and the name of the applicant will no longer be anonymised.

(5) Order (5) made by the Tribunal on 30 October 2024 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 is vacated.

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 (NSW) — Risk assessment due to the presence of records concerning the applicant that were relevant to the safety of children — Criminal record including conviction for indecent exposure in 1977 — Multiple complaints by members of the general public against applicant for offending behaviour in the context of public transport workplace resulting in cancellation of taxi driver authority in 2014 — Use carriage service to menace/harass/offend in 2017 — Current and ongoing publication of offending comments vilifying homosexual community on YouTube platform and whether psychological harm may be caused to gay and lesbian children as a result — Likelihood of the applicant repeating his behaviour due to his unwillingness and/or inability to cease publishing further offending statements.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Anti-Discrimination Act 1977

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

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Cases Cited:

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

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

BHY v Children’s Guardian [2015] NSWCATAD 91

BJB v children’s Guardian (No 2) [2014] NSWCATAD 164

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

Briginshaw v Briginshaw (1938) 60 CLR 336

CEJ v Children’s Guardian [2016] NSWCATAD 164

CHB v Children’s Guardian [2016] NSWCATAD 214

Children’s Guardian v CF1 [2020] NSWSC 1673

Children’s Guardian v CKF [2017] NSWSC 893

CJF v Children’s Guardian (No 3) [2022] NSWCATAD 124

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

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

Commissioner for Children and Young People v IK [2005] NSWSC 1136

CRG v Children’s Guardian [2017] NSWCATAD 295

CTE v Children’s Guardian [2018] NSWCATAD 28

CXZ v Children’s Guardian [2020] NSWCA 338

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

DAI v Children’s Guardian [2017] NSWCATAD 308

DGS v Children’s Guardian [2018] NSWCATAD 302

Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60

DYH v Public Guardian [2021] NSWCATAD 136

EJA v Children’s Guardian [2021] NSWCATAD 202

FKZ v Children’s Guardian [2023] NSWCATAD 169

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125

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

Liang v University of Technology, Sydney [2018] NSWCTAP 285

McDonald v Guardianship and Administration Board [1993] VR 521

McDonald v Director of Social Security (1984) 1 FCR 354, (1984) 6 ALD 6

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

Smith v Commissioner of Police [2014] NSWCATAD 184

Tilley v Children’s Guardian [2015] NSWSC 1208

Tilley v Children’s Guardian [2017] NSWCA 174

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

YG & GG v Minister for Community Services [2002] NSWCA 247

Youseff v NSW Legal Services Commissioner [2020] NSWCATOD 85

ZZ v Secretary, Department of Justice [2013] VSC 267

Texts Cited:

None cited

Category:

Principal judgment

Parties:

John Christopher Sunol (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Robert Balzola and Associates (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00260551

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of matters contained in the report of the Consultant and Forensic Psychiatrist filed in relation to these proceedings, is prohibited.

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any child contained in documents lodged with the Tribunal in relation to these proceedings, is prohibited.

Until further order, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), 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 and broad overview

1. In this case, the applicant sought administrative review under s 27(1) of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") of the decision of the Children's Guardian made on 3 August 2023 to refuse to grant him a working with children check clearance on the grounds that he poses a risk to the safety of children ("Refusal Decision").

2. Given the number, range and complexity of issues raised both substantively and procedurally, we set out our proposed approach to this administrative review.

Procedural issues

3. The applicant made numerous submissions asserting that there were procedural deficiencies throughout the course of the proceedings, including with respect to the respondent's filing of evidence. A number of submissions also asserted that the proceedings were 'stained' with administrative error on the part of the respondent. Those assertions heavily permeated the applicant's submissions which were labyrinthine in their content and arrangement. Some of those assertions were also threaded through the applicant's affidavit evidence.

4. Since the Tribunal's obligation is to determine the correct and preferable decision (as to whether the applicant poses a risk to the safety of children), it is important that the analysis underpinning its determination is clear, and not at risk of being clouded by other issues. At the same time, the Tribunal must adhere to the rules of natural justice and ensure procedural fairness is afforded to both parties.

5. We hasten to add that the Tribunal is not required to make findings on every argument or every submission advanced before it and to record those findings and submissions in the decision: Liang v University of Technology, Sydney [2018] NSWCTAP 285 at [31]-[32]. In seeking to achieve the right balance, we draw from the wisdom of their Honours in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 per Mason P, Meagher JA and Sheller JA:

"On the one hand, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations. On the other hand, an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system."

6. As a further comment on our approach, we do not intend to distract our determination with a detailed analysis of other litigation involving the applicant in anti-discrimination actions against him for homosexual vilification. We say this at the outset in light of many assertions by the applicant that the respondent has attempted "a form of clandestine abuse of process by use of Children's Guardian (sic) law to punish the applicant" for his public comments against homosexuality. We only refer to those anti-discrimination matters where they demonstrate conduct by the applicant that is relevant to our assessment of whether he poses a risk to the safety of children. That is the fundamental issue to be determined.

Threshold matters

7. In structuring our Reasons, we first address four issues raised by the applicant that we regard as threshold matters:

1. witnesses to be called for cross-examination;

2. objections about material filed by the respondent and sought to be admitted as evidence in the hearing. In particular, the applicant objected to the admission of YouTube Videos which contain the applicant's views against homosexuality. He also objected to the admission of an article published by the Australian Bureau of Statistics ("ABS") on the mental health outcomes of gay and lesbian young people who experience stigma and discrimination on the basis of their gender identity;

3. submissions that the Guardian did not conduct a risk assessment in accordance with the legislative intent of s 15(3) and s 15(4) of the Act, resulting in an alleged "flawed administrative decision". Additionally, the applicant submitted that the Guardian failed to notify him of the subsections within s 15 of the Act that were relied upon for the exercise of the Guardian's discretion to conduct an assessment and the factors that may be taken into account, resulting in alleged "manifest unreasonableness", as well as an asserted lack of natural justice and procedural unfairness;

4. clarification regarding the Guardian's refusal, pursuant to s 13AA(2) of the Act, to allow the applicant to withdraw his application for clearance. This is not to be confused with the applicant's request, pursuant to s 27(1) of the Act, for administrative review of the Guardian's refusal to grant him a clearance. They are two separate matters entirely, and the Guardian's refusal to allow the applicant to withdraw his application for clearance is not a matter for this Tribunal's determination.

Substantive issues

8. After receiving the applicant's application for a clearance on 4 March 2019, the Guardian advised him by letter of 25 July 2019 that, based on records that had been made available, a risk assessment pursuant would be undertaken pursuant to s 15 of the Act. The applicant was asked to provide information about his criminal record and to answer a number of questions relevant to the risk assessment. It was to be a number of years, almost four years in fact, before the applicant provided his response on 18 May 2023 (although, as part of an iterative process, there had been other correspondence between the parties).

9. During the course of the risk assessment, the Guardian became aware of a number of other matters of concern including the applicant's criminal record, complaints against him in the context of his work as a taxi driver, and his repeated conduct of publicly vilifying homosexuals which was found in multiple cases before the NCAT and the ACAT to be contrary to anti-discrimination laws. Also during the course of the risk assessment, the Guardian became aware of the applicant's comments against homosexuality which he uploaded onto YouTube. We understand those comments remain publicly available.

10. The respondent formed the view that, on the basis of the applicant's criminal and workplace records and his record of repeated conduct in making public comments against homosexuality, he poses a risk to the safety of gay and lesbian children who could suffer psychological and emotional harm if exposed to his views in the context of the applicant undertaking volunteer responsibilities in child-related work.

11. The respondent advised the applicant by letter of 15 June 2023 that it was proposed to refuse his application for clearance ("the Notice of Proposed Refusal"). The applicant was invited to provide, by 6 July 2023, any other information relevant to the respondent's assessment of his risk, before issuing the Refusal Decision.

12. The applicant did not provide further information, and sought instead to withdraw his application for clearance on 18 July 2023. However, that request came too late. The respondent had already formed the view that the applicant posed a likely risk to the safety of children and therefore the provisions of s 13AA(2) of the Act came into play. Section 13AA(2) specifically prohibits the Guardian from consenting to the withdrawal of an application for clearance where the Guardian considers there is a likely risk to the safety of children if the applicant engages in child-related work. Whilst not a substantive issue to be determined by this Tribunal, this development introduced a complexity into the matter that required clarification during the hearing, and in these Reasons.

13. Having not received any further information from the applicant to take into account on whether he posed a risk to children, the Guardian issued the Refusal Decision on 3 August 2023.

14. With respect to all matters of complaint against him, the applicant contended that none involve or concern children, directly or indirectly, and he asserted that he is not a risk to children.

15. As to his online comments about homosexuality, the applicant argued that his comments are harmless and that he does not have a pattern of online harassment of vulnerable communities. He denied that the LGBTQIA+ community is vulnerable and rejected the proposition that his homophobic statements on the internet could be linked with psychological harm to children or young people.

16. As to his criminal conviction for indecent exposure, the applicant argued that this occurred more than 47 years ago, with no further offences of that nature by him. He submitted that his criminal record for "use of carriage service offences" had been unduly inflated by the respondent and was, in the overall picture, trivial.

17. The applicant contended that complaints in the ACAT and NCAT for discrimination against homosexuality had been made repeatedly and systematically by five individuals acting in consortium against him with "anima and acrimony", and that he had been victimised as a result and had no option but to defend his religious convictions by making his views known publicly.

18. With respect to complaints against him when he worked as a taxi driver, the applicant asserted that the "anonymous" complaints were part of an unrelenting attack on him by those same five individuals.

Orders sought by the applicant

19. The orders sought by the applicant required some clarification during the hearing due in part to the confusion created by his request for the Tribunal to order that he be permitted to withdraw his application for clearance, as well as a request for a stay for six months. In written submissions, the applicant had also sought an order that he be granted a clearance, with an order for costs in his favour.

20. In oral submissions, the applicant again pressed for an order that he be permitted to withdraw his application for clearance. As already noted, this is an entirely separate matter which is not the subject of the administrative review. The Tribunal made this plain during the hearing.

21. With explanation from the Tribunal about the orders available under s 63(3) of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"), the applicant then confirmed in closing oral submissions that he sought an order setting aside the Refusal Decision and substituting it with a more favourable decision. We understood this to mean the applicant sought an order under s 63(3)(c) of the ADR Act. The applicant also asked the Tribunal to make an order for costs against the respondent.

22. The respondent opposed the application, opposed the request for an order awarding costs, and sought an order to have the Refusal Decision affirmed.

23. On the evidence before us, we have decided that the correct and preferable decision is to affirm the Refusal Decision. We have not made an order as to costs. Our reasons follow.

Non-publication and non-disclosure orders

24. Due to the sensitive nature of matters contained in the report of a Consultant and Forensic Psychiatrist filed in these proceedings, the Tribunal made an order on 23 April 2024 pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act") that the publication or broadcast of that report is prohibited. The terms of the order issued to the parties contained error and is therefore varied to accurately reflect the Tribunal’s direction.

25. In order to protect the identity of individuals under the age of 18 referred to in documents filed in these proceedings, the Tribunal made an order on 23 April 2024 pursuant to s 64(1)(a) of the CAT Act that the disclosure of the name of any child contained in documents lodged in these proceedings is prohibited. The terms of the order issued to the parties contained error and is therefore varied to accurately reflect the Tribunal’s direction. This order may be vacated subject to further written submissions from the parties in relation to the order made on 31 August 2024 (discussed further below).

Anonymisation issue

26. In directions made on 31 August 2023, Senior Member Mulvey made an order prohibiting the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in the proceedings.

27. In further directions made on 9 November 2023, Senior Member Mulvey vacated that previous non-publication order and directed that the name of the applicant would no longer be anonymised since the applicant sought to have his name identified with the proceeding. The reason for the applicant seeking to have his name identified, and not anonymised, is not made clear in the order. It appears that the applicant may have sought to “clear his name”. That approach, of course, presupposed that the applicant would be granted a clearance, which is not the outcome of his application.

28. After concluding the hearing and closely assessing the evidence, in particular the applicant’s own statements, it was clear to this Tribunal that the applicant held grave concern that if he was not granted a clearance, his opponents would publicly attack him, labelling him a paedophile. This concern appeared to loom large in the applicant’s evidence.

29. As a result, this Tribunal issued its reasons to the parties on 30 October 2024 with the applicant's name anonymised by making an interim order to that effect, subject to any further written submissions that the parties may have wished to make.

30. As a corollary to the interim anonymisation order, a further interim order was made on 30 October 2024 (subject to any further written submissions that the parties may have wished to make) which vacated a previous order made by the Tribunal on 31 August 2023 under s 64(1)(a) of the Civil and Administrative Act 2013 prohibiting 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.

31. Subject to any submissions by the parties, the Tribunal considered that the issue of anonymisation and non-publication orders could be determined 'on the papers', without the need for a hearing pursuant to s 50(2) of the CAT Act.

26. The applicant was given 14 days from the date of the Tribunal’s reasons on 30 October 2024 to make any written submissions in relation to the anonymisation of his name and any non-publication orders, as well as a submission as to whether those matters could be determined without the need for a hearing.

27. The respondent was given 21 days from the date of the Tribunal’s reasons on 30 October 2024 to make any written submissions in reply in relation to the anonymisation of the applicant’s name and any non-publication orders, as well as a submission as to whether those matters could be determined without the need for a hearing.

28. The applicant did not respond to the Tribunal’s direction to make submissions.

29. The respondent filed submissions on 20 November 2024, adopting a neutral position in relation to the anonymisation of the applicant’s name and any non-publication order, and advised that the respondent considered that the matters could be determined without the need for a hearing.

30. In the absence of submissions or further evidence from the applicant as to the anonymisation of his name, we concluded that there had been no change of position with respect to his desire to have his name publicly broadcast with respect to this proceeding. We also concluded, in the absence of submissions from the applicant, that he had no objection to the matters being determined without the need for a hearing.

31. Accordingly, we made further orders on 25 November 2024 which appear as orders (4) and (5) in these Reasons.

Material and evidence filed

Filed on behalf of the applicant

38. The following material was filed on behalf of the applicant:

1. Application for administrative review dated 14 August 2023, filed on 21 August 2023, attaching a copy of the Refusal Decision;

2. an Amended application for administrative review dated 2 November 2023, filed in the Registry on 6 November 2023, affirming the application filed on 21 August 2023 and attaching the grounds in support of the application;

3. Affidavit of Robert Balzola sworn on 27 October 2023, having been filed together with an application for stay or interim order on 1 November 2023 which was subsequently withdrawn, marked for identification as "Exhibit A1";

4. Affidavit of the applicant sworn on 9 November 2023 and filed on 10 November 2023, marked for identification as "Exhibit A2";

5. Summary of legal argument filed on 21 March 2024 (not marked);

6. Summary of legal argument Errata filed on 9 April 2024 (not marked);

7. Summary of Legal Arguments in Reply, Applicant's Case List and Chronology filed on 22 April 2024 (not marked).

Filed on behalf of the respondent

39. The following material was filed on behalf of the respondent:

1. a bundle of documents filed on 22 September 2023 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) ("the s 58 Bundle"), marked for identification as "Exhibit R1";

2. a supplementary bundle of documents filed on 11 October 2023 ("the Supplementary s 58 Bundle"), marked for identification as "Exhibit R2";

3. an affidavit of Philippa Meikle dated 5 December 2023 ("the First Meikle Affidavit") to which is exhibited a copy of a report issued by La Trobe University in February 2021 titled 'Writing Themselves in 4: The Health and Wellbeing of LGBTQA+ Young People in Australia' ("Writing Themselves in 4"), marked for identification as "Exhibit R4";

4. an affidavit of Philippa Meikle dated 24 January 2024 ("the Second Meikle Affidavit") annexing a USB device containing videos published on the applicant's public YouTube page ("the YouTube Videos"), marked for identification as "Exhibit R5";

5. an affidavit of Philippa Meikle dated 10 April 2024 ("the Third Meikle Affidavit") addressing procedural matters relevant to the application before this Tribunal and to which is annexed a copy of an article published on 27 February 2024 by the ABS regarding the mental health of LGBTQ+ Australians ("the ABS Article") marked for identification as "Exhibit R6";

6. Written Submissions of the Respondent filed on 11 April 2024 (not marked);

7. an Aide Memoire, identifying the applicant's comments in YouTube Videos and cross-referenced to paragraphs in the respondent's written submissions, handed up on the second day of hearing (not marked).

Oral evidence

40. The applicant gave evidence and was cross-examined during the hearing.

Oral submissions

41. Both parties made oral submissions.

Threshold matter 1: Calling of witnesses for cross-examination

42. The applicant initially sought to call Mr Poberezny-Lynch for cross-examination in relation to the matters contained in his affidavit dated 30 October 2023 which had been filed on behalf of the respondent in support of an application to dismiss the proceedings under s 55(1)(d) of the CAT Act. Mr Poberezny-Lynch objected to being required for cross-examination since the respondent's application to dismiss proceedings had been withdrawn. The Tribunal considered that Mr Poberezny-Lynch's Affidavit referred to procedural matters that were not relevant to the substantive issue to be determined. Accordingly, the affidavit was not read into evidence.

43. The applicant also sought to call the Children's Guardian for cross- examination. This was objected to on the grounds that the Refusal Decision is not under review in these proceedings. The application is a merits review of the application for clearance and not a review of the correctness (or otherwise) of the Refusal Decision. The applicant did not press this, and accepted that the Guardian would not be called to give evidence or be cross-examined.

44. In oral submissions, the applicant's legal representative objected to the applicant being called for cross-examination. The respondent argued the Guardian's right to test the applicant's evidence by calling and cross-examining him in relation to his affidavit evidence. The respondent foreshadowed that the cross-examination would be short and stated that the questions to be asked would not seek to cause harm to the applicant (which we understood to mean the questions would be sensitive to the applicant's disability and not seek to cause stress). The Tribunal considered that it would be procedurally unfair to not allow the applicant to be cross-examined on his affidavit evidence. No argument was advanced on behalf of the applicant that would lead the Tribunal to consider that, by being called, the applicant would suffer any procedural unfairness. Accordingly, the Tribunal ruled against the objection.

45. Despite initially objecting to the applicant being called for cross-examination, in subsequent oral submissions, the applicant's legal representative criticised the respondent for failing to put a question to the applicant in cross-examination about a comment made by the pastor in his church in a verbal reference provided to the Guardian on 19 January 2023. We note that the pastor's written and verbal references were both contained in the s 58 Bundle and the applicant had an opportunity to put on further evidence if he considered any matters contained in the reference required clarification. We find no procedural unfairness was caused to the applicant.

Threshold matter 2: Objections to evidence sought to be admitted

46. The applicant objected to the tender of the Second Meikle Affidavit annexing a USB device containing the YouTube Videos. The applicant also objected to the tender of the ABS Article annexed to the Third Meikle Affidavit, on the grounds that the material was filed after the date on which the respondent had been directed to file evidence (10 December 2023).

47. The respondent argued that the applicant's objection misunderstood the nature of the Tribunal's review which is administrative and inquisitorial, as opposed to being adversarial: Youseff v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [30]:

"… Administrative review proceedings in NCAT are administrative and inquisitorial in nature, with no onus of proof on either the applicant or respondent."

48. It is important to note that the Tribunal determines matters (including evidential aspects) by reference to the statutes under which it is operating, or in considerations of natural justice or common sense, rather than in the technical rules relating to onus of proof developed by the courts: McDonald v Director of Social Security (1984) 1 FCR 354 at 356, (1984) 6 ALD 6 at [9]-[10] per Woodward J:

"The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called "legal" and "evidential" aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue.

The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" (AAT Act s 33(1)(c)).

Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent."

49. The Act, the CAT Act and the ADR Act, set out a number of relevant provisions that assist in better understanding the inquisitorial nature of proceedings and the application of procedural rules where this Tribunal's administrative jurisdiction is exercised.

50. The "guiding principle" for the application of the CAT Act and the procedural rules to Tribunal proceedings is set out in s 36(1) of that Act, namely:

"…to facilitate the just, quick and cheap resolution of the real issues in the proceedings."

51. Under s 38(1) of the CAT Act, the Tribunal may determine its own procedure, and is to act with as little technicality and formality as possible. The provisions of s 38(4) relevantly provide:

"(4) The Tribunal is to act with as little formality as the circumstances of the case permit, and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."

52. Under s 63(1) of the ADR Act, the Tribunal must determine the "correct and preferable" decision (whether the applicant poses a real and appreciable risk to the safety of children), having regard to the material before it (which is not limited to the material before the Guardian).

53. Whilst neither party bears an onus of proof in relation to this application for review, the applicant has a statutory obligation to fully disclose to the Tribunal any matters relevant to the application: s 27(4) of the Act.

54. In determining the real issues in the proceedings, the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. A merits review allows the opportunity for a more intensive examination of the circumstances surrounding the decision being challenged (namely, the Refusal Decision) and this Tribunal has received information and submissions which, as noted above, is additional to those that were before the Guardian. Indeed, the Tribunal has an obligation to ensure that all relevant material is placed before it so as to enable it to determine all the relevant facts in issue. Section 38(6) relevantly provides:

"38 Procedure of Tribunal generally

…

(6) The Tribunal-

(a) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings,

…"

55. There is thus clearly a link between the inquisitorial nature of administrative review proceedings and the material considered to be relevant for the purpose of determining the facts in issue.

The Tribunal's previous orders

56. In written submissions, the applicant contended that an order made by Senior Member Mulvey on 1 February 2024 and an order made by Senior Member Dr J Lucy on 15 February 2024 refused the admission of further evidence by the respondent beyond 10 December 2024. Each of those orders contained notes which are reproduced below:

Order made on 1 February 2024 by SM Mulvey

"Notes:

The respondent filed a late bundle of evidence on 25 January 2024 outside of the Tribunal's orders. The Applicant was not ready to commit to a further timetable until he has had time to consider that new material. The proceedings are adjourned for further directions."

Order made on 15 February 2024 by SM Dr Lucy

"Notes:

The respondent requested an adjournment on the basis that the respondent wished to consider putting on expert evidence. There was no evidence in support of the request for an adjournment and no indication of why the request was being made at this late stage. In those circumstances, and noting that the respondent has had ample opportunity to adduce evidence, that request was refused."

57. The order made on 1 February 2024 listed the proceeding for further directions on 15 February 2024. The note in that order referred to the respondent's late filing of evidence on 25 January 2024. This was a reference to the Second Meikle Affidavit annexing the USB material. On our reading of the note, the applicant was to consider the new material before committing to a further timetable. The note in that order was not, as contended on behalf of the applicant, a rejection of the Second Meikle Affidavit annexing the YouTube Videos.

58. The orders made on 15 February 2024 set a further timetable for the filing of legal arguments and set the matter down for hearing on 22 April 2024 for 2 days. The note in those orders included a refusal to grant an adjournment to the respondent on the basis that the respondent wished to put on expert evidence. The respondent did not subsequently seek to file an expert report. The ABS Article filed on 11 April 2024 is not an expert report and was not tendered into evidence as such. The note in the orders made on 15 February 2024 cannot therefore be taken, or interpreted, to be a rejection of the ABS Article annexed to the Third Meikle Affidavit.

The YouTube Videos

59. The respondent contended that the YouTube videos were not in the possession of, or known to, the Guardian at the time of the applicant's filing of the application for administration review and that, accordingly, the material was not subject to the obligation arising under s 58 of the ADR Act.

60. The Second Meikle Affidavit annexing the YouTube Videos was filed on 24 January 2024 before the applicant's evidence was due to be filed, and the applicant was granted a two week extension to consider whether he wished to file any evidence in reply. The respondent's evidence was that, as at the date that the Third Meikle Affidavit annexing the ABS Article was affirmed (10 April 2024), the applicant had not filed any evidence in reply to the Second Meikle Affidavit annexing the YouTube Videos.

61. As at the date of the hearing, the applicant had not filed evidence in reply, and did not seek to tender evidence in reply at the hearing. In our view, there was no denial of procedural fairness because the applicant was given the opportunity to consider the YouTube Video evidence before committing to a timetable. In effect, the applicant had three months to respond to that evidence such as giving context to it or elaborating on the circumstances in which his comments had been made and uploaded onto his YouTube Channel.

The ABS Article

62. The respondent has contended that the ABS Article is evidence of the causal relationship between, on the one hand, stigma, discrimination, bullying and exclusion and, on the other hand, poorer psychological and mental health in lesbian and gay people.

63. One of the real issues to be determined in this application concerns whether the applicant poses a risk to the safety of children who may suffer psychological harm because of the applicant's homophobic comments about gay and lesbian people, including young people. We consider the ABS Article to be relevant to determining that issue.

64. As noted above, the applicant's objection to the tendering of the ABS Article appears to be connected to the notation in the directions made on 15 February 2024 and we say this is an erroneous interpretation. In correspondence to the applicant's legal representative on 28 February 2024, the Guardian's legal representative advised that the Guardian would seek to tender the ABS Article and rely upon it. The Guardian's correspondence contended that the ABS Article provided evidence about the poor mental health of LGBTQ+ Australians and the causal role played by stigma, discrimination and bullying those poor mental health outcomes. The correspondence also noted that evidence of those matters had already been filed in the s 58 bundle and in exhibits to the First Meikle Affidavit filed on 5 December 2023. The applicant's criticism of the respondent and his legal representative for sending an "unsolicited email" to the applicant's legal representative with a copy of the ABS Article is, in our view, unwarranted.

65. Each party to proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle and to comply with directions and orders of the Tribunal: s 36(3) of the CAT Act. This includes complying with the Tribunal's timetable for the filing of evidence.

66. However, we consider the YouTube Videos and the ABS Article to be relevant material that assists in determining the real issues in this case. This, in our view, outweighs the requirement for the respondent's evidence to have been filed by 10 December 2023, particularly since the applicant was given time to file evidence in reply to the YouTube Videos, and elected to not do so. Further, the YouTube Videos are the applicant's own material (since he created them), and his objection to this material being put before the Tribunal cannot be sustained, particularly in light of his statutory duty to fully disclose all relevant material.

67. Appreciating the inquisitorial nature of the proceedings, the Tribunal needs to have all relevant material before it in order to determine the real issues in the proceeding, and apply the guiding principle of facilitating the just, quick and cheap resolution of those issues. Whilst ensuring that the rules of natural justice are applied and ensuring that procedural fairness is afforded to both parties, the Tribunal balances the requirement to act with as little formality as this case permits (in furtherance of the guiding principle), against orders made with respect to the dates for filing of material.

68. We cannot see any procedural unfairness resulting to the applicant by accepting the YouTube Videos and the ABS Article as evidence relevant to the real issues to be determined, and ruled accordingly.

Threshold matter 3: The Guardian's refusal to allow the applicant to withdraw his application for clearance

69. In this case, the applicant sought to withdraw his application for a clearance after receiving the respondent's Notice of Proposed Refusal. During the hearing, the applicant pressed this issue.

70. We clarify that the applicant was not seeking an order that he be permitted to withdraw his application for administrative review of the Refusal Decision.

71. Under s 13AA(1) of the Act, an application for clearance can be withdrawn at any time. However, an application for clearance can only be withdrawn with the consent of the Children's Guardian. If the Guardian considers there is a likely risk to the safety of children should the applicant engage in child-related work, then the Guardian must not consent to the withdrawal of an application: s 13AA(2) of the Act. The relevant provisions are set out below:

13AA Withdrawal of applications for clearances

(1) An applicant may, with the consent of the Children's Guardian, withdraw an application for a working with children check clearance at any time.

(2) The Children's Guardian must not consent to the withdrawal of an application for a clearance if the Children's Guardian considers there is a likely risk to the safety of children if the applicant engages in child-related work.

72. On 20 July 2023, the Guardian made a decision under s 13AA(2) to not allow the applicant to withdraw his application. At that stage of the risk assessment, the Guardian had formed the view (as evidenced by the Notice of Proposed Refusal) that there was a likely risk to the safety of children if the applicant was to engage in child-related work. The Guardian had given the applicant an opportunity to provide further information on the risk assessment before issuing the Refusal Decision, however, no further information had been provided.

73. Also at that point in time (20 July 2023), the applicant had provided his response of 18 May 2023 to the respondent's request for additional information in relation to his application for clearance. The applicant's response stated that while it was not his idea to apply for a clearance, he had been told by 'NewStart' to apply for one. He also stated that it was important to him that his application for clearance was successful and that having a clearance would give him "the opportunity to do voluntary work or teach Bible studies to children in my local church". Also at the time of the Guardian's decision to not allow the application for clearance to be withdrawn, the Guardian had been advised by the applicant that he was being tested for Parkinson's Disease.

74. The applicant then notified the Children's Guardian by email dated 28 July 2023 that his circumstances had changed, that he had been diagnosed with Parkinson's Disease and that he no longer had a need for a clearance. He requested a pause of six months before his application for clearance was determined by the Guardian, to allow the applicant time to consider issues that were important to him. This request for a "pause" may have been somehow connected to an order sought to "stay" the matter for six months, but this was not clarified by the applicant and was, in any event, not progressed as an option.

75. During the hearing, the applicant again raised the Guardian's decision to not allow him to withdraw his application for clearance as another matter to be considered by the Tribunal. The respondent contended that there had been no previous indication in the course of the proceedings before the Tribunal that the applicant would ask the Tribunal to set aside that decision made under s 13AA(2) of the Act.

76. It was submitted on behalf of the applicant that it was his prerogative to seek to withdraw his application. It was further submitted that the Guardian had made an administrative error in refusing to allow the application to be withdrawn. We acknowledge that an applicant can seek to withdraw an application for clearance but only before the Guardian decides the matter under s 13AA(2) of the Act. Once it is considered there is a likely risk to the safety of children if the applicant engages in child-related work, the Guardian must not consent to the requested withdrawal of an application for clearance.

77. The respondent contended that there had been no administrative error. At the point of considering the withdrawal request, on the information available, the Guardian formed the view that the applicant did not meet the criteria for a clearance and there was therefore a risk to the safety of children if he was to engage in child-related work.

78. The applicant's request for the Tribunal to order the respondent to allow the applicant to withdraw his application for clearance, is tantamount to asking the Tribunal to override s 13AA(2) of the Act which prohibits the Guardian from consenting to the withdrawal of an application where it is considered there is a likely risk to the safety of children if the applicant engages in child-related work. This includes in a volunteer or non-volunteer capacity.

Threshold matter 4: The Guardian's decision to conduct a risk assessment under s 15(3) of the Act

79. The applicant challenged the Guardian's decision to undertake a risk assessment, arguing that s 15(3) of the Act does not give the Children's Guardian an "unbridled discretion" to conduct an assessment. The applicant also asserted that the Guardian had taken irrelevant factors into account and had failed to consider the factors set out in s 15(4) adequately, or at all.

80. The application before the Tribunal is not to decide the lawfulness of the Guardian's decision to conduct a risk assessment. The issue for determination by the Tribunal is whether, applying the test in s 18(2) of the Act, it is satisfied that the applicant does not pose a risk to the safety of children.

81. Nonetheless, we address the applicant's assertion that the Guardian does not have power under s 15(3) to conduct a risk assessment of an applicant where that applicant is not subject to an assessment requirement under the Act. Section 14 relevantly provides:

14 Assessment requirements

A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.

82. In this matter, there are no matters specified in Schedule 1 that apply to the applicant.

83. We turn then to the fundamental issue of the Guardian's discretion in s 15(3) of the Act to conduct a risk assessment. The relevant provisions in s 15 are set out below:

15 Assessment of applicants and holders

(1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit (emphasis added.) the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder.

(4) In making an assessment, the Children's Guardian may [emphasis added] consider the following-

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

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

(d) the age of each victim of any relevant offence or conduct at the time it 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 or of any other matters that caused the assessment 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 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.

(4A) The Children's Guardian may determine an applicant or holder does not pose a risk to the safety of children only if the Children's Guardian is satisfied-

(a) a reasonable person would allow the person's child to have direct contact with the applicant or holder-

(i) while not directly supervised by another person, and

(ii) while the applicant or holder was engaged in child-related work, and

(b) the making of the determination is in the public interest.

(5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.

84. In Tilley v Children's Guardian [2015] NSWSC 1208 at [10], per Basten JA, Meagher JA and Leeming JA, submissions made by the Children's Guardian on the power to be exercised by the Tribunal s 15(3) were accepted by the Supreme Court of New South Wales:

"[10] Although the phrase defined in s 14 is "assessment requirement", the relevant provisions refer to a person being "subject to an assessment requirement". Section 15 requires the Children's Guardian to carry out a "risk assessment" of a person who is "subject to an assessment requirement". Section 15(2) confers a power (apparently without obligation) to conduct a risk assessment with respect to "the holder of a clearance" in identified circumstances. That provision has no relevance for present purposes, except as part of the structure of the legislative scheme. Similarly, s 15(3) implicitly identifies a power to conduct a risk assessment in respect of an applicant even if subs (1) and (2) are not engaged. (emphasis added.) That provision was said by the respondent to assist in understanding the scheme as it applied to the applicant."

85. In the case before us, the applicant's submission did not expand upon the assertion that the Children's Guardian's discretion is not "unbridled".

86. The respondent argued that the words "do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant" in s 15(3), do not include a limitation that the exercise of power under that subsection is conditional upon satisfaction of ss 15(1) and 15(2). The respondent argued that to read into s15(3) a limitation on the exercise of the discretion is plainly contrary to the clear wording of the phrase "do not limit" in s 15(3) and would be inconsistent with the purpose of the Act. Further, the respondent argued that reading a limitation (which would be directly contradictory to the plain wording "do not limit") would result in the absurd outcome whereby the Guardian would be unable to refuse an application for a clearance if an applicant does not fall within either limb of ss (1) and (2).

87. We agree with the respondent's analysis. The wording in s 15(3) does not contain any qualifying circumstances, or exceptions. It is plainly worded and supports the object of the Act, to ensure the safety, welfare and well-being of children.

88. With respect to the applicant's submission that the respondent had failed to consider the considerations set out in s 15(4) adequately or at all, we note that the factors in s 15(4) are discretionary, arising from the use of the word "may". This is not the same as the factors in s 30(1) of the Act which the Tribunal must consider when determining an application.

89. The applicant's submission that the respondent failed to apply s 15 correctly or at all, resulting in a "flawed administrative decision" that "stained" the proceedings, is therefore not accepted.

90. In another line of argument, the applicant contended that the Guardian's letter of 25 July 2019 ("Risk Assessment Notice") advising him that a risk assessment would be undertaken pursuant to s 15 of the Act, failed to notify him of the subsections within s 15 that were relied upon for the exercise of the Guardian's discretion to conduct an assessment and the factors that may be taken into account. The applicant argued that the Risk Assessment Notice failed to refer specifically to s 15(3) of the Act. Further, he argued that the Notice of Proposed Refusal (15 June 2023) also failed to refer specifically to s 15(3) of the Act. The applicant pointed out that s 15(3) was only mentioned in the Refusal Decision (3 August 2023).

91. If we have understood the applicant's line of argument correctly, he contended that the Guardian's final decision is, or results in, an act of "manifest unreasonableness" where it is based upon an alleged ineffective Risk Assessment Notice, and that the applicant was therefore "caught by surprise" by the Refusal Decision.

92. The applicant also alleged that the exclusion of a reference to s 15(3) in the Notice of Proposed Refusal was "false and misleading" to the applicant. Additionally, he argued that he had been denied procedural fairness and natural justice. Further, the applicant asserted that, having been "caught by surprise", this was "tantamount to the perception of prejudice and bias".

93. As already noted above, s 15(3) states that s 15(1) and s 15(2) do not limit the circumstances in which the Guardian may conduct a risk assessment of an applicant. In this case, neither s 15(1) nor s (2) of the Act applied to the applicant's circumstances. The inclusion in the Risk Assessment Notice of a reference to s 15(3) is not necessary, since s 15(3) refers to sections that have no application to this applicant. Having said that, there would be no detriment if the Risk Assessment Notice attached the entirety of s 15.

94. The Notice of Risk Assessment annexed:

1. Frequently Asked Questions ("FAQs");

2. a form of Statutory Declaration which the applicant was asked to complete and submit;

3. a copy of ss 15(4) and 15(4A) of the Act, setting out the factors that the Guardian may consider in conducting the assessment;

4. a form of reference (from an employer); and

5. a form of reference (from a professional).

95. The Risk Assessment Notice in the terms issued to the applicant is, in our view, both adequate and effective. In our view, an applicant's focus would likely, and reasonably, be on the factors to be taken into account when assessing the applicant's risk, rather than an academic argument as to whether the Guardian's discretion under s 15(3) is limited by s 15(1) and s 15(2) of the Act.

96. The applicant submitted that it would be reasonable for a "lay person", reading the Notice of Risk Assessment, to form an understanding that the FAQs would be based on the statutory criteria, and nothing more. The submission does not make clear why such an understanding would be evident, or reasonable. FAQs are questions of a general nature that are anticipated by applicants and are not specific to each applicant's particular circumstances. In any event, we disagree with that proposition, since there is nothing in the Notice of Risk Assessment to suggest that the Guardian was only interested in the applicant's response to the FAQs.

97. Indeed, the Notice of Risk Assessment clearly stated that the assessment would be based on the records identified in the notice as well as the seriousness of the applicant's total criminal record (emphasised in bold print and underlined in the notice itself) if applicable. The Notice described the "next step" as requiring the applicant to complete the Statutory Declaration and provide information to the Guardian about his conduct since the matters that triggered the assessment, why he considered the matters would not reoccur, his total record, and any other information relevant to the risk assessment. The instructions were quite clear. The matters to be disclosed (if relevant) in the Statutory Declaration were numbered 1 to 10, and were clearly articulated.

98. The applicant contended that "no fair minded reasonable person" on a reading of the Notice of Proposed Refusal would form a view that s 15(3) factors and discretions were relied upon. We have already dealt with the s 15(3) discretion above. As to the factors to be taken into account, the Notice of Proposed Refusal clearly stated that information obtained during the assessment was considered against the s 15(4) factors.

99. The argument that the applicant was "caught by surprise" when he received the Refusal Decision has no merit since he was already on notice of the factors in s 15(4) and s 15(4A) that may be taken into account when assessing his risk, since they were annexed to the Notice of Risk Assessment.

100. The assessment process was undertaken over an extended period of time (almost 4 years), giving the applicant ample time to understand the factors relevant to the risk assessment and for him to respond to the Guardian's request for information. We find no grounds for an assertion that the applicant was denied natural justice or procedural fairness, or that he could have been "caught by surprise" by the matters relied upon in the Refusal Decision. The assertion that the Guardian's final decision is, or results in, an act of "manifest unreasonableness" where it is based on an effective notice that a risk assessment would be conducted under s 15 of the Act, has no merit.

101. In our view, the Guardian's Risk Assessment Notice correctly and adequately cited the relevant provision, namely, s 15 of the Act, and put the applicant on notice of the factors that would be considered.

102. We have therefore dismissed the applicant's submissions concerning s 15(3) of the Act as having no merit.

Issue for the Tribunal's determination

103. As we have made clear, the fundamental decision to be made in this case is whether, applying the test in s 18(2) of the Act, the Tribunal is satisfied that the applicant does not pose a risk to the safety of children.

104. Under s 63(1) of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"), the Tribunal must determine the "correct and preferable" decision (i.e. whether the applicant poses a real and appreciable risk to the safety of children) with regard to the material before it, including material that may not have been before the respondent, and the applicable law: YG & GG v Minister for Community Services [2002] NSWCA 247 at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children's Guardian [2015] NSWCATAD 91 at [14].

105. Subsection 63(2) of the ADR Act allows the Tribunal, for the purpose of determining an application, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

106. In determining an application, understanding the effect of ss 63(1) and 63(2) of the ADR Act, the Tribunal must not simply "stand in the shoes" of an administrator. As explained in DYH v Public Guardian [2021] NSWCATAD 136 at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator's decision:

"The effect of these two subsections is sometimes characterised as the Tribunal being required to "stand in the shoes" of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at [530] and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 at 77."

107. The matter is heard de novo, with material before this Tribunal that was before the Guardian plus other material including affidavit evidence, submissions considered to be relevant and the applicant's oral evidence.

108. The Tribunal may make orders that include an order to affirm the Refusal Decision, or vary it, or set it aside and make a decision in substitution, or set it aside and remit the matter to the respondent for reconsideration in accordance with any directions or recommendations of the Tribunal: s 63(3) of the ADR Act. The relevant provision is set out below:

"63 Determination of administrative review by Tribunal

…

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

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

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

325. Written and oral submissions made on behalf of the Guardian maintained the contention that the applicant's homophobic comments pose a real and appreciable risk to the safety of gay and lesbian children by causing them psychological harm.

326. The respondent also submitted that the applicant does not meet the reasonable person test because of his continued homophobic comments, arguing that a reasonable person would not allow their children to have direct contact with the applicant because of his tendency to engage in homosexual vilification. Additionally, it was argued that his criminal history, his history of perpetrating homosexual vilification contrary to anti-discrimination laws, his inability to comply with court and Tribunal orders, and the revocation of his taxi authority would give the reasonable person sufficient concern so as to not allow the applicant to have direct, unsupervised contact with their child.

327. It was submitted that it would not be in the public interest for the applicant to be granted a clearance because, in considering the public interest, the primary consideration is the safety, welfare and wellbeing of children. Further, on the facts in this case, there is no evidence that the applicant needs a clearance. Summarising the respondent's position, there is no public interest in granting a clearance to a person who does not require it.

Summation of the overall assessment of risk

Protective jurisdiction and the paramount consideration

328. The paramount consideration under the Act is the safety, welfare and well-being of children and, in particular, protecting them from abuse. In deciding the application, the protective jurisdiction of the legislation towards children must prevail, even if the consequences are that the applicant may be innocent of allegations but is denied a clearance because the evidence leaves open sufficient possibility that he is a risk: CXZ per Simpson AJA at [58].

Safety includes psychological safety

329. In deciding whether the applicant poses a real and appreciable risk to the safety of children, we accept that "safety" in s 18(2) of the Act includes "psychological safety". The Tribunal has previously accepted that an applicant may pose a risk of psychological harm to the safety of children: FKZ, CEJ and EJA.

330. We also accept, as propounded by the respondent, that it would be contrary to the ordinary meaning of "safety" to conclude that it does not include psychological safety. Further, if psychological safety was excluded from the assessment of risk under s 18(2) of the Act, conduct that is potentially harmful to children may be considered to be irrelevant to the Tribunal's task, and this would result in an illogical conclusion.

Particular vulnerability of children who identify as LGB

331. Children (and young people under the age of 18) are, by virtue of their age, more vulnerable than adults particularly where the adults are in a position of authority and, hence, the legislation is protective towards them. Children (and young people under the age of 18) who identify as homosexual are especially vulnerable, as evidenced in the reports and article published by LGBTIQ+ Health Australia, La Trobe University Report, and the ABS. The evidence establishes that gay and lesbian young people have pre-existing vulnerabilities that are not present to the same degree in the general population.

Causal link between stigma/abuse and poor mental health in LGB people

332. The reports and article provide unequivocal evidence of the causal relationship between stigma and discrimination on one hand, and poorer psychological and mental health in gay and lesbian young people, on the other hand. The results demonstrate that young people who experience homophobic abuse are more likely than the normal population to report self-harm and feel less safe in a range of environments, and are therefore vulnerable.

333. In this matter, it is the respondent's past and continuing conduct to speak publicly and vehemently against homosexuality that gives the greatest concern for risk, in circumstances where he has expressed a desire to work in a volunteer capacity teaching Bible studies to children.

334. The applicant's public homophobic comments are verbally abusive towards gay and lesbian people, including young people. They incite hatred towards homosexuals and describe them in derogatory terms. They pose a risk to the psychological and mental health of gay and lesbian young people under the age of 18 if those people were to be exposed to the applicant's views in an environment where, armed with a clearance, he undertakes volunteer work such as teaching bible classes in a church. The applicant has stated that his online comments are harmless, demonstrating that he has no insight into the negative impact that his comments have on the psychological safety of gay and lesbian young people.

335. The applicant denies an intention to cause harm, and has suggested that his comments should be ignored. In 2017, he acknowledged that he suffers from "uncontrollable anger", stating: "I do not intend to write menacing, harassing or offensive material at all. Although sometimes when I am angry I express that anger but it is best interpreted as justified anger and ignored." The difficulty with the applicant's self-analysis, is that he fails to consider the effect of his angry comments, expressed with the utmost intensity and venom against homosexuals.

336. The causal link between homophobia and mental ill-health among gay and lesbian children does not depend on the subjective intention of the person making homophobic comments. The essential consideration is that the comments are homophobic, and therefore the causal link is established.

337. We find that the risk of psychological harm to gay and lesbian young people who may encounter the applicant's homophobic views in the context of him being given a clearance and working as a volunteer in child-related employment, is real and appreciable, and not merely fanciful or theoretical.

Likelihood of repetition

338. The applicant has vowed to never, ever stop speaking against homosexuality, promising to repeat his behaviour. His comments on YouTube remain publicly accessible and are therefore considered to be current. We therefore have no confidence that the applicant would refrain from making public homophobic comments which pose a risk to the safety of gay and lesbian children in the context of the applicant engaging in volunteer child-related work.

339. We cannot ignore his repeated conduct over a substantial number of years which is offensive and abusive towards homosexuals, and the impact of that conduct which poses a risk of harm to young people who are vulnerable because of their gender identity if they were to be exposed to his views.

340. The risk that he poses to the psychological and emotional safety of gay and lesbian children remains unmitigated.

Lack of understanding of the applicable law

341. From the material before us, it is apparent that from early in his adult life, the applicant's interactions with people and social/political systems have been through the lens of a significant brain injury. In making this observation, we do not doubt or dismiss lightly the fact that he has completed university degrees and other courses, demonstrating his cognitive ability.

342. However, it was apparent from his oral evidence that the applicant lacks understanding of the regulatory scheme under which clearances are issued. His statements on the legal meaning of "child" with respect to young people who have not turned 18, was ambivalent. Our concern about the applicant's apparent incorrect understanding of the legal meaning is increased because of his explanation about the age of the underage girl referred to in the alleged blog. We are not persuaded that he understands that a person who is 17 or who may be approaching the age of 18, is still a child under the law.

343. Further, his responses to questions on how he would interact with gay and lesbian children were equivocal. Since the applicant rejects the proposition that gay and lesbian young people are vulnerable, we cannot be satisfied that he would act protectively towards them. If he engaged in work for a church or charitable organisation as a volunteer, and made statements such as those he has repeatedly made, and those statements are heard by children who identify as homosexual, it could cause psychological and emotional harm to them.

344. The applicant held an incorrect view that, if not granted a clearance, his name would be included on a 'paedophile' register that may be accessed by various authorities and the general public. He also held an erroneous view, if he sought to travel overseas, that not being granted a clearance may impede his passage through immigration.

345. This demonstrated lack of understanding of the law leads us to conclude that we cannot be confident he will comply with the law.

346. Further, his demonstrated record of non-compliance with Tribunal and Court orders demonstrates a lack of respect for the law, and increases the concern that he may not comply with it, which increases the risk that he poses.

Conclusion

347. For the reasons set out above, the Tribunal is satisfied on the totality of the evidence before it that the applicant poses a real and appreciable risk to the safety of children, and should not be granted a clearance.

348. It is therefore not necessary to consider the “reasonable person” and “public interest” tests in ss 30(1A)(a) and 30(1A)(b) of the Act.

Other non-substantive matters raised on behalf of the applicant

Asserted use of the Act for a "collateral purpose"

349. The applicant contended that the intended purpose of the Act was "ousted" in circumstances where the legislation was being used for a "collateral purpose". If we understand the submission correctly, the applicant asserted that the respondent's purported predication (to link the applicant's online publications with his conduct as a taxi driver) was exercised for a collateral purpose to turn this matter into a "clandestine homosexual discrimination case by use of the CP (sic) Act in a manner in which this children risk assessment process was not intended." Further, it was contended that the respondent's purported "abuse" of the CP (sic) Act directly attacked the applicant's publications and by extension, his religious and personal beliefs on a topic of public interest.

350. The applicant's legal representative submitted that the entire case of the respondent was predicated on a hypothetical and speculative position that online publications are in some way linked to the applicant's conduct as a professional driver or other profession, unsupported by evidence, which amounts to a "trigger to implement a working ban of 5 years".

351. We find the applicant's submission to be without any logical basis and is not supported by any evidence. We have accordingly disregarded it.

Asserted breach of Model Litigant Policy

352. The applicant's legal representative asserted that the respondent's conduct raised Model Litigant issues with respect to attempting to put on supplementary evidence, causing delay and further harm to the applicant.

353. The respondent denied there had been any delay in the proceeding and contended that, even if there had been any delay, the applicant contributed to it. Without seeking to criticise the applicant in this respect, the respondent noted that the applicant had sought extensions for the filing of evidence.

354. For the reasons given with respect to the second threshold matter, the applicant has not suffered procedural unfairness. The applicant was afforded the opportunity to consider and respond to the YouTube Video evidence, and elected to not tender evidence in reply. His assertion that the respondent has breached the Model Litigant Policy, has no merit.

Asserted breach of the "Harman undertaking"

355. The applicant contended that the respondent had breached the "Harman undertaking" with respect to the report which is the subject of this Tribunal's non publication order.

356. This is a serious allegation made against the respondent.

357. As pointed out in written submissions for the respondent, the 'Harman undertaking' prohibits the use of documents and information for a "collateral or ulterior purpose", being a purpose other than the conduct of the legal proceedings in which the material was disclosed.

358. The 'Harman undertaking' is derived from the decision of Harman v Secretary of State for the Home Department [1983] 1 AC 280, and was explained by the High Court in Hearne v Street (2008) 235 CLR 125 at [96] (Hayne, Heydon and Crennan JJ) as set out below:

"Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use for any purpose other than that for which it was given unless it is received into evidence."

359. In this matter, the respondent did not obtain the report asserted by the applicant to have been used for a collateral purpose, from other proceedings involving the applicant. Indeed, the report was provided by the applicant to the respondent.

360. In his letter dated 18 May 2023 during the risk assessment process, the applicant provided a link to the report, to the Guardian. Accordingly, as the report was in the Guardian's possession as at the date of the applicant's application to the Tribunal, it was filed with the s 58 Bundle.

361. Further, the applicant's affidavit filed in these proceedings annexed a copy of the report.

362. Accordingly, there is no suggestion that the respondent breached the 'Harman undertaking' in these proceedings. We find the applicant's allegation to be baseless and, in all the circumstances, unwarranted.

Costs

363. As we understand it, the applicant's legal representative contended that the decision record (of the Guardian) demonstrated systemic mismanagement against the applicant and, on that basis, the applicant sought payment of his legal costs, relying on s 60 of the CAT Act.

364. Section 60(1) of the CAT Act provides that each party to proceedings in the Tribunal is to pay their own costs. However, under s 60(2) of that Act, the Tribunal may award costs if it is satisfied there are special circumstances such as those set out in s 60(3). No submissions were advanced to argue that any of the special circumstances in s 60(3) exist in the proceedings before us that may warrant an award of costs.

365. In any event, clause 13 of Sch 3 of the CAT Act overrides s 60(2). Clause 13 of Sch 3 provides that despite s 60 of the CAT Act, the Tribunal does not have the power to award costs in proceedings for the purpose of the Child Protection (Working with Children) Act 2012, as set out below:

"13 Costs not to be awarded for certain proceedings

Despite section 60 of this Act [our emphasis], the Tribunal may not award costs in proceedings for any of the following Division decisions-

…

(b) a decision for the purposes of the Child Protection (Working with Children) Act 2012,

…"

366. Accordingly, no order of costs is made in this matter.

Orders

1. The decision of the Children's Guardian dated 3 August 2023 to refuse to grant the applicant a working with children check clearance is affirmed.

2. Pursuant to s 64(3) of the Civil and Administrative Tribunal Act 2013, order 2 in orders made on 23 April 2024 is varied to read as follows: "The disclosure of the name of any child contained in documents lodged with the Tribunal in these proceedings is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013."

3. Pursuant to s 64(3) of the Civil and Administrative Tribunal Act 2013, order 3 in orders made on 23 April 2024 is varied to read as follows: "The publication of matters contained in the report of a Consultant and Forensic Psychiatrist lodged with the Tribunal in relation to these proceedings is prohibited pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013."

4. Order (4) made by the Tribunal on 30 October 2024 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 is vacated, and the name of the applicant will no longer be anonymised.

5. Order (5) made by the Tribunal on 30 October 2024 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 is vacated.

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: 26 November 2024