Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FTT v Children's Guardian [2023] NSWCATAD 238 Hearing dates: On the papers Date of orders: 30 August 2023 Decision date: 30 August 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: A Starke, Senior Member A Limbury, General Member Decision: 1. Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of "Aggravated – carry out sexual act with etc another person without consent" contrary to s 61KF(1)(a) of the Crimes Act 1900 (NSW) in relation to which the applicant was sentenced on 29 October 2020 to a conditional release order with no conviction recorded. 2. Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal orders the Children's Guardian to grant the applicant a clearance forthwith. Catchwords: ADMINISTRATIVE LAW – Application for review under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – Applicant a disqualified person – whether the person poses a risk to the safety of children. Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 CHB v Children's Guardian [2016] NSWCATAD 214 Commission for Children and Young People v [2002] NSWSC 949 CRG v Children's Guardian [2017] NSWCATAD 295 CTE v Children's Guardian [2018] NSWCATAD 28 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 CXZ v Children's Guardian [2020] NSWCA 338 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Office of the Children's Guardian [2015] NSWSC 523 DAI v Children's Guardian [2017] NSWCATAD 308 Director of Public Prosecutions v Smith [1991] 1 VR 63 EOL v Children's Guardian [2021] NSWCATAD 146 Hogan v Hinch (2011) 243 CLR 506 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 Smith v Commissioner of Police [2014] NSWCATAD 184 PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 ZZ v Secretary Department of Justice [2013] VSC 267 Texts Cited: None cited Category: Principal judgment Parties: FTT (Applicant) Children's Guardian (Respondent) Representation: Solicitors: David Davidge (Applicant) Crown Solicitor (Respondent) File Number(s): 2023/00124133 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Introduction 1. In this case the applicant was disqualified from obtaining a working with children check clearance pursuant to s 18(1)(a) and Schedule 2.1(1)(e) of the Child Protection (Working with Children) Act 2012 (NSW) ("the WWC Act"), having been sentenced on 29 October 2020 to a six-month conditional release order with no conviction recorded for the offence of "Aggravated – carry out sexual act with etc another person without consent" pursuant to s 61KF(1)(a) of the Crimes Act 1900 (NSW) ("the Disqualifying Offence"). 2. The applicant had applied for a working with children check clearance on 9 March 2023, nominating Education as the relevant child-related employment sector. 3. The Children's Guardian sent a "Notice of final decision – WWCC application refused" dated 21 March 2023 ("the Refusal Decision") to the applicant, advising him that his application for a clearance had been refused on the grounds that he is a disqualified person under s 18(1) of the WWC Act. 4. On 18 April 2023, the applicant filed an administrative review application in the NSW Civil and Administrative Tribunal ("the Tribunal") seeking a review of the Refusal Decision. 5. Also on 18 April 2023, the applicant filed an application for an interim order for stay of the decision of the Children's Guardian to refuse to grant him a clearance. The stay application was dismissed by the Tribunal on 27 April 2023 pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 6. A person deemed to be a disqualified person may only apply for an enabling order under s 28 of the WCC Act, rather than seeking administrative review under s 27 of that Act. 7. On 27 April 2023, the Tribunal ordered that, in respect of the application: "2. The substantive application filed by [FTT] on 18 April 2023 is to be treated as a General Application pursuant to section 28 of the Child Protection (Working with Children) Act 2012 (NSW)." 1. In any proceedings where an enabling order is sought, it is presumed that the applicant poses a risk to the safety of children unless the applicant proves to the contrary. 2. In his application filed on 18 April 2023, the applicant submitted that he is a fit and proper person to be granted an enabling order. He also submitted that his disqualification from making a further application for a clearance or working with children for five years is harsh and unreasonable given the circumstances of his offending and having regard to his subjective circumstances. 3. If the Tribunal is positively satisfied that the applicant does not pose a risk to the safety of children, it is empowered to make an enabling order declaring he is not a disqualified person in respect of the specified offence. If the Tribunal makes an enabling order, it may also exercise its discretion to make an order for the Children's Guardian to grant the applicant a clearance. 4. The respondent supported the making of the enabling order and the making of an order to grant the applicant a clearance. 5. Following receipt of consent orders signed by the respondent on 19 July 2023 and the applicant on 25 July 2023, and following receipt of correspondence dated 8 August 2023 from the respondent, the Tribunal made the following orders on 17 August 2023: "1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing of the application for an enabling order filed on 18 April 2023. 2. The hearing on 5 September 2023 at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney is vacated. 3. Pursuant to s 50(4) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal is to determine these proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of the Civil and Administrative Tribunal Act 2013 (NSW), enabling legislation and the procedural rules." 1. For the reasons set out in this decision, the Tribunal decided to grant the enabling order and to order the Children's Guardian to issue the applicant a clearance forthwith. Prohibition order 1. Due to the sensitive nature of these proceedings and to protect against the identity of an alleged victim being disclosed, an order was made on 27 April 2023 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. Accordingly, the pseudonym 'FTT' was used for the applicant's name in these proceedings. Additionally, to protect the identity of any victim, geographic locations have not been disclosed. Material and evidence before the Tribunal 1. In addition to his application attaching a copy of the Refusal Decision, the following material was filed on 13 June 2023 on behalf of the applicant: 1. a Statement by the applicant dated 22 May 2023; 2. a reference from Mr S (High School Principal) dated 2 June 2023; 3. a bundle of documents comprising Court Attendance Notices and a Facts Sheet relating to the Disqualifying Offence and the offence of "destroy or damage property", a criminal history report, a witness statement dated 26 October 2020 by Mr R; 4. the following character references addressed to the Local Court Presiding Magistrate before whom the applicant appeared on 29 October 2020: 1. reference dated 15 October 2020 from Mr S; 2. undated reference of Mr G; 3. reference dated 20 October 2020 from Ms D; 4. undated reference from Mr K; 5. reference dated 15 October 2020 from Mr PW; 6. reference dated 19 October 2020 from Mr P; 7. reference dated 16 October 2020 from Mr C; 8. reference dated 19 October 2020 from Ms P; 9. reference dated 22 October 2022 from Mr M and Ms M; 10. reference dated 15 October 2022 from Mr L; 11. reference dated 9 October 2020 from Mr GW. 1. Written Submissions dated 17 August 2023 (filed on 25 August 2023). 1. The following material was filed on behalf of the respondent: 1. a bundle of documents filed on 25 May 2023 (which also includes the documents noted in paragraphs 15(3) and 15(4) above filed on behalf of the applicant; 2. a further bundle of documents comprising reply evidence filed on 22 June 2023; 3. Written Submissions filed on 4 August 2023. Background 1. The applicant is aged 22 and is currently employed to perform bartending and 'front-of-house' duties in a Returned Services League Club in regional New South Wales. He had planned to become a secondary school teacher. To that end, during 2021 and 2022 he was a full-time university student, undertaking an undergraduate degree in Social Science/Education. In early 2023, he was preparing to work in schools when he applied for his working with children check clearance. Consequent upon having his clearance refused because of his disqualifying record, he deferred his university course. 2. He also has plans to coach junior sports as a volunteer. At various times since 2016, the applicant has been involved with football and netball clubs in a regional town in New South Wales. During the years 2017 to 2019, in connection with an AFL Club in the same region, the applicant had contact with young children as a referee and boundary umpire, and whilst doing gate duties, running water and serving in canteen and barbeque activities. He also had contact with young children during his association with a junior basketball team, as a coach and referee and when performing bench duties. 3. Whilst at university during 2022, the applicant organised inter-residential house sporting competitions. During 2023, he was involved with refereeing and bench scoring high school students playing basketball. The Tribunal understands that these activities did not involve children. 4. He requires a working with children check clearance in order to continue his studies and become a secondary school teacher, and to continue sports coaching activities. 5. Before starting his university course, the applicant took a year off (referred to as a 'gap' year) during which time he did some work as a truck driver for a mining company. 6. In the early hours of a Sunday morning in July 2020 during his 'gap' year, the applicant engaged in conduct resulting in being charged with the Disqualifying Offence and a related offence of "destroy or damage property". At the time, he had been enjoying a social night out with friends and became highly intoxicated. 7. In his personal Statement, the applicant took full responsibility for his actions and expressed deep remorse for his conduct and behaviour. Disqualifying Offence and related offence of "destroy or damage property" 1. According to the Court Attendance Notice ("the CAN") for the Disqualifying Offence, the offence occurred at 1:30am on 19 July 2020 at a service station in a country regional town, when the applicant carried out a sexual act towards the victim in the company of another person, contrary to s 61KF(1)(a) of the Crimes Act 1900 (NSW). 2. According to the CAN for the offence of "intentionally or recklessly destroy/damage property", this incident occurred at 1:45am soon after the Disqualifying Offence when the applicant was said to have intentionally or recklessly destroyed or damaged property of the same victim, being the windscreen and windscreen protector of his vehicle. This offence was pursuant to s 195(1)(a) of the Crimes Act 1900 (NSW). 3. According to the applicant's Statement, he was heavily affected by alcohol on the night in question and had a poor memory of some of what occurred. While ordering food, they encountered a truck driver who initiated a conversation with one of his friends, calling the group "poofters" and saying that young people today are "bludgers" while he was working hard to keep the country going. The applicant understands from his friends' account of what occurred, that in response to being called "soft cock pussies", he put the sausage roll he was eating in front of his trousers and told the truck driver to "suck it". His recollection is that he threw the sausage roll up onto the truck's windscreen and they then left the service station. 4. The statement of Mr R (the designated driver who drove the applicant and two other friends to the service station) generally corroborated the applicant's account of the conversation with the truck driver. His statement was that they purchased some items and a truck driver started a conversation with them about their state of intoxication. The truck driver made a comment about how hard he worked and that they (the friends) did not. He called them "pussies", whereupon the applicant took offence and responded by placing a sausage roll he was purchasing at his groin and said "give me a hand job, you've been doing it all night". The banter continued whilst they completed their purchases. When walking back to their car, this witness saw the applicant run in the direction of the truck driver's vehicle but was unsure of what the applicant was doing, when he emerged from the opposite side of the truck and entered their own vehicle. 5. Closed circuit television footage obtained from the service station identified the applicant as he walked into the service station 1:43am. He purchased a sausage roll, was seen talking to the victim near the cashier and then placed the sausage roll near his groin area. According to the NSW Police Facts Sheet, the applicant said "Do you want to suck it? He gives good hand-jobs, he has been doing it all night." The victim responded with "You young fellas, I've heard it all before". The applicant and the truck driver continued talking for a few minutes. The applicant then left the service station at 1:54 am and ran towards the front of the victim's vehicle. He jumped onto the front bull-bar and reached up towards the windscreen, grabbing the windscreen protector. He threw the sausage roll onto the windscreen, jumped off and ran towards the rear of the truck. He then left in his friend's car. The victim inspected the front of his truck and saw that the passenger-side windscreen was covered in sausage roll and the windscreen protector had been damaged. There was no permanent damage to either the windscreen or the windscreen protector. 6. The applicant attended the local police station on 22 July 2020 and participated in an electronically recorded interview. He stated that he had been highly intoxicated and only vaguely remembered his actions. He recalled that he had engaged in an argument but did not remember what was said. He admitted to throwing the sausage roll onto the windscreen but had no memory of grabbing onto or damaging the windscreen protector. Local Court proceedings 1. At the hearing on 29 October 2020, the applicant pleaded guilty and received a conditional release order (without proceeding to conviction) in respect of the Disqualifying Offence for six months commencing on 29 October 2020 and concluding on 28 April 2021. On the same date, he was sentenced in respect of the property damage offence to a concurrent conditional release order, without proceeding to conviction, for six months commencing on 29 October 2020 and concluding on 28 April 2021. Legislative framework and legal principles Protective jurisdiction of the WCC Act 1. The stated object of the WCC Act is (as set out in s 3 of that Act) to protect children by requiring persons engaged in child-related work to have working with children check clearances: 3 Object of Act The object of this Act is to protect children— (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances. 1. Under s 12(1) of the WCC Act, there are two classes of clearance: volunteer (authorising workers to engage in unpaid child-related work), and non-volunteer (authorising workers to engage in paid and unpaid child-related work). 2. "Child-related work" is defined in s 6 of the WWC Act as involving direct contact by a worker with a child or children and that contact is part of or more than incidental to the work. The applicant's proposed employment as a secondary school teacher and his desire to coach junior sports on a volunteer basis, will require a clearance. 3. "Children" is defined in s 5(1) of the WCC Act to mean "persons under the age of 18 years". Paramount consideration in the operation of the WCC Act 1. In exercising its functions under the WCC Act, the Tribunal is to have regard to the "paramount consideration" in the operation of that Act as set out in s 4: 4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act. 1. The term "child abuse" as referred to in s 4 of the WWC Act is not defined in that Act. However, in BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal held that child abuse would be aptly described as "maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these and includes exposure to harm caused by or being subjected to family violence". Jurisdiction of the Tribunal is protective, and not punitive, in nature 1. Notwithstanding the paramount consideration in s 4 of the WCC Act, the jurisdiction of the Tribunal is protective, and not punitive, in nature: DAI v Children's Guardian [2017] NSWCATAD 308 at [8] (DAI); AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34] (AYU); Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the WCC Act is not to impose additional punishment on a person such as the applicant, but to eliminate possible risks to children: CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU at [34]. 2. More recently, in CXZ v Children's Guardian [2020] NSWCA 338 (CXZ), Basten JA at [23] elaborated on the object of the WWC Act, specifically with respect to it not being concerned with imposing penalties: "Legislation such as [the WWC Act] is, by its nature, protective; it does not impose penalties on individuals but is more closely analogous to licensing legislation which is designed to protect the public from persons who are not of good character or otherwise cannot be trusted to maintain professional discipline and trust in the exercise of authority or power over others." Framework in the WCC Act relating to disqualified persons 1. Under s 18(1) of the WCC Act, the Children's Guardian must not grant a clearance to a "disqualified person", being a person convicted of an offence specified in Schedule 2 of that Act. An offence pursuant to s 61KF of the Crimes Act 1900 (NSW) is included in Schedule 2. 2. As previously noted in these reasons, the applicant is a "disqualified person", having been sentenced in respect of the Disqualifying Offence to a six-month conditional release order, without proceeding to conviction, on 29 October 2020. 3. Where an applicant is a "disqualified person", the Children's Guardian must notify that person of the decision to refuse an application for clearance. 4. Pursuant to s 28(1) of the WWC Act, a disqualified person may apply to the Tribunal for an "enabling order" declaring that they are not to be treated as a disqualified person for the purposes of that Act in respect of a specified offence. 5. Under s 28(4) of the WCC Act, the Children's Guardian is to be a party to the proceedings. 6. An enabling order cannot be made subject to conditions: s 28(8) of the WCC Act. 7. Pursuant to s 28(6) of the WCC Act, if the Tribunal makes an enabling order, the Tribunal may also order the Children's Guardian to revoke an interim bar or to grant the person a clearance. Issue for the Tribunal's determination 1. Section 28 of the WWC Act does not specify the test to be applied in determining whether to make an enabling order: EOL v Children's Guardian [2021] NSWCATAD 146 (EOL) at [18]. 2. However, where an enabling order is sought, s 28(7) of the WWC Act provides that the Tribunal must presume (unless proven to the contrary) that the applicant poses a risk to the safety of children. The applicant therefore has the burden of satisfying the Tribunal that they do not pose a risk to the safety of children. The applicant must fully disclose to the Tribunal any matters relevant to the application: s 27(4) of the WCC Act. 3. The issue for determination by the Tribunal is whether, applying the test in s 18(2) of the WCC Act, it is satisfied that the applicant does not pose a risk to the safety of children. 4. Relying upon the decision in EOL at [18], the correct test for the Tribunal to consider is whether it is positively satisfied that the applicant does not pose a risk to the safety of children. In BKE v Office of the Children's Guardian [2015] NSWSC 523 (BKE) at [25], the Supreme Court previously accepted that this approach is consistent with s 18(2) of the WWC Act, which imposes the same threshold when the Children's Guardian is required to undertake a risk assessment. The meaning of "risk to the safety of children" 1. The meaning of "risk to the safety of children" is defined in s 5B of the WCC Act to mean a "real and appreciable risk to the safety of children." The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]: "One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…" 1. His Honour's consideration of the meaning of risk was cited with approval in a number of cases before the Tribunal and the NSW Supreme Court: CTE v Children's Guardian [2018] NSWCATAD 28 at [30]; BKE at [26] and AYU at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a "real and not fanciful" risk to the safety of children: CXZ at [26]. Mandatory considerations under s 30(1) of the WCC Act to determine risk and make an enabling order 1. In determining whether the applicant poses a risk to the safety of children, the Tribunal must consider the matters set out in s 30(1) as set out below: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part— (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. 1. If positively satisfied that the applicant does not pose a risk to the safety of children, the Tribunal is empowered under s 28(1) of the WCC Act to make an enabling order in respect of a specified offence. Further considerations under s 30(1A) of the WCC Act before making an order for the Children's Guardian to grant a clearance 1. If the Tribunal is minded to make an enabling order, it may also consider making an order for the Children's Guardian to grant the applicant a clearance in which case it must then consider the two-part test set out in s 30(1A) of the WCC Act: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that— (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. 1. The Tribunal is precluded from making an order that the Children's Guardian grants the applicant a clearance unless both the tests in s 30(1A) are satisfied. First limb of the two-part test under s 30(1A)(a) - the "reasonable person" test 1. The first limb of the two-part test is known as the "reasonable person" test. It requires the application of an objective standard based upon the views of the "reasonable person". It assumes that the "reasonable person" is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY at [26]; PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [57]. 2. The legislation in Victoria contains provisions similar to those in s 30(1A) of the WCC Act. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36] (VQB), the Tribunal held that an objective test was called for by the legislation: "… The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation." 1. The reasonable person approach taken in VQB was endorsed in NSW in CRG v Children's Guardian [2017] NSWCATAD 295 at [85] and DAI at [90]. In DAI at [91], the Tribunal said: "In order to properly consider this test, a 'reasonable person' would need to know about the disqualifying offence, the circumstances surrounding offence, the applicant's entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him." 1. As previously noted, a clearance cannot be made subject to conditions. Accordingly, the reasonable person test requires that the reasonable person permit direct, unsupervised contact of their child with the applicant in the course of any child-related work, and this includes not only the work for which the applicant is now trained or the work in which the applicant proposes to engage. Second limb of the two-part test under s 30(1)(b) - the "public interest" test 1. The second limb of the two-part test is referred to as the "public interest" test. It requires the Tribunal, before making an order enabling the applicant to work with children, to be satisfied that it is in the public interest to make such an order. 2. The expression "in the public interest" was considered by the Federal Court in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 per Tamberlin J at [9]: "The expression "in the public interest" directs attention to that conclusion or determination that best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances." 1. Additionally, the notion of "public interest" was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]: "The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question." 1. The matters to be considered by the Tribunal in determining whether it is in the public interest to grant an order are not specified in the WWC Act. However, guidance on the context in which "public interest" is to be considered can be found in Hogan v Hinch (2011) 243 CLR 506 at [31] per French CJ: "When used in a statute, the term derives its content from 'the subject matter and the scope and purpose' of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest." 1. Accordingly, in proceedings under the WWC Act, the "public interest" must be considered in light of the paramount consideration under s 4 of that Act, namely, to ensure the protection of children from sexual or physical harm. 2. The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75]. The "public interest" is thus the interest of the public at large, and not the interest of a section of the public or an individual which do not overlap with the public interest: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 (Sinclair) per Barwick CJ at [480]. 3. As explained by the Court of Appeal in Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75], citing Sinclair: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals." 1. When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (ZZ) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]: "In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others." Consideration Mandatory considerations in s 30(1)(a)-(k) of the WCC Act 1. In determining the application, the Tribunal is obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the WCC Act. The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar: s 30(1)(a) 1. The Disqualifying Offence is objectively serious, involving an act of a sexual nature, and carried a maximum penalty of 3 years imprisonment at the date of sentencing. 2. However, the applicant's behaviour did not involve exposing himself to the victim or any other person. The applicant verbally ridiculed the victim and, in a state of heavy intoxication, made inappropriate sexual gestures to him. 3. The offending is at the extreme lower end of the range of seriousness for this type of offence, as reflected in the penalty imposed on the applicant, namely a conditional release order, without proceeding to conviction, for six months commencing on 29 October 2020 and expiring on 28 April 2021. 4. The other offence of "intentionally or recklessly destroy/damage property", is also at the lower end of seriousness having regard to the lack of permanent damage inflicted on the victim's vehicle and as reflected in the penalty imposed on the applicant, namely a concurrent conditional release order, without proceeding to conviction, for six months commencing on 29 October 2020 and expiring on 28 April 2021. The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b) 1. The Disqualifying Offence occurred three years ago, on 19 July 2020. 2. There is no evidence before this Tribunal of the applicant engaging in unlawful or inappropriate conduct since the Disqualifying Offence. The age of the person at the time the offences or matters occurred: s 30(1)(c) 1. The applicant was 19 years of age at the time of the Disqualifying Offence. The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim: s 30(1)(d) 1. The victim was 59 years old at the time of the Disqualifying Offence and there is no evidence before this Tribunal that he had any particular vulnerabilities. The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e) 1. The difference in age between the applicant and the victim is 40 years. 2. The applicant and the victim were unknown to each other before the Disqualifying Offence occurred. Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f) 1. The victim was not a child and the applicant could not reasonably have thought the victim was a child. The person's present age: s 30(1)(g) 1. The applicant is currently 22 years of age. The seriousness of the person's criminal history and the conduct of the person since the matters occurred: s 30(1)(h) 1. The seriousness of the applicant's criminal history and his conduct since the Disqualifying Offence and the offence of "destroy or damage property" was discussed above in relation to ss 30(1)(a) and 30(1)(b) of the WCC Act. 2. By letter dated 1 May 2023, the NSW Police confirmed that its 'COPS' database contains no records that refer to the applicant in the context of violence, child abuse or sexual offences. 3. Further, by letter dated 16 June 2023, the NSW Police advised there were no outstanding Warrants or Enforceable Apprehended Violence Orders against the applicant. 4. The Department of Communities and Justice does not hold any records regarding the applicant. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i) 1. The applicant's offending conduct occurred in a service station in the early hours of the morning, when it was unlikely that children would be present. Given the low range of seriousness with which the Tribunal regards the Disqualifying Offence and the damage to property offence, the effect upon children of any repetition of the applicant's conduct would likely be mildly distressing though not severely impactful. 2. There is no evidence before the Tribunal that the applicant has received treatment from a psychologist or counsellor to assist him in reflecting upon his conduct that led to the Disqualifying Offence. However, the applicant's Statement appears to be a sincere, personal account which demonstrates insight into his offending behaviour, his understanding of the dangers of alcohol abuse, and the importance of staying in control of his actions. 3. The Tribunal finds the likelihood of the applicant repeating the conduct to be very low, after taking the following matters into account: 1. he does not have a criminal history prior to the Disqualifying Offence and has not engaged in further offending behaviour which indicates that both the Disqualifying Offence and the offence of damage to property were isolated incidents; 2. he is not known to have engaged in any inappropriate conduct involving children; 3. his written Statement records that he experiences anxiety when he reflects upon his conduct and that he deeply regrets his behaviour which he described as idiotic and immature; 4. in his written Statement, he did not seek to defend or excuse his conduct and took full responsibility for his actions; 5. he has acknowledged the embarrassment that his conduct caused to his family and himself, indicating he has insight into his offending conduct and the effect it has had on his family as well as his career and sports coaching prospects; 6. he no longer indulges in binge drinking of alcohol because he never wants to be in a situation where he is not in control of his actions, indicating that he has taken positive measures to ensure he does not repeat his offending behaviour; 7. he has expressed his sense of devastation at not being able to continue his studies to become a secondary school teacher or to continue his volunteer work as a junior sports coach. Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1) 1. The Tribunal understands there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration. Any information given by the applicant in, or in relation to, the application: s 30(1)(j) 1. In support of his application, the applicant's written Submissions adopted and repeated the matters raised in the respondent's written Submissions. He relied upon his filed Statement as well as a character reference dated 2 June 2023 from Mr S, the Principal of the High School the applicant had attended. The applicant also sought to rely upon character reference material addressed to the Presiding Magistrate for the purpose of the criminal proceedings in October 2020 (which included a reference from Mr S dated 15 October 2020). 2. The School Principal's character reference dated 2 June 2023 acknowledged the Disqualifying Offence and stated that it was completely out of character for the applicant to have been involved in the incident. In his opinion, the applicant has patience, empathy and a deep understanding of the needs of children and is highly suitable for roles involving their care, support and guidance. The School Principal stated that he had observed the applicant engaging in volunteer initiatives and community programs aimed at assisting children, and commended him for having a genuine passion for making a positive impact on the lives of young individuals. His reference stated that the applicant had expressed extreme embarrassment and remorse for his actions. He highly recommended that the applicant be given a clearance. 3. The character references provided to the Local Court Presiding Magistrate attest to the applicant's positive attributes and good character, and his involvement in the school and broader community activities. He was described as being courteous and self-disciplined, and a person of honesty and integrity. His active involvement in community sport was noted to include basketball, netball, rugby league, cricket and AFL. He was also observed to be an exemplary student and a positive role model for fellow team mates. A reference from another high school teacher where the applicant attended, found him to be a kind and respectful young man, with a bright future ahead of him. In the opinion of Mr G, who had known the applicant for around 8 years at the time of the Local Court proceedings, the applicant's level of contrition about his offending behaviour has led him to making more informed lifestyle decisions. Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1) 1. The respondent has not exchanged information with organisations or agencies in jurisdictions outside of New South Wales that administer clearances. Accordingly, there is no other relevant information in relation to the applicant obtained in accordance with s 36A of the WCC Act to be taken into consideration. Any other matters that the Children's Guardian considers necessary: s 30(1)(k) 1. In written Submissions, the respondent argued that the applicant does not pose a risk to the safety of children, based on consideration of the matters outlined in s 30(1) of the WCC Act. 2. The Tribunal agrees with the respondent's Submission that the applicant has discharged his burden to prove that he is not a real and appreciable risk to the safety of children having regard to the following matters: 1. the isolated nature of the offending conduct and that it did not involve children; 2. that the applicant has not committed any further offences; 3. the applicant's contrition for the offending conduct; 4. the character references provided by Mr S, High School Principal; 5. the volume and content of character references provided to the Local Court Presiding Magistrate at the time of the criminal proceedings. Conclusion on the issue of risk 1. With respect to the issue of risk, on the basis of the evidence before us, we find that the applicant has displaced the presumption in s 28(7) of the WCC Act, and this Tribunal is positively satisfied that he does not pose a risk to the safety of children. Accordingly, we are minded to make the enabling order requested. Further considerations relating to making an order for clearance 1. The Tribunal is obliged to consider the evidence under s 30(1A) of the WCC Act before exercising its discretion to make an order requiring the Children's Guardian to grant the applicant a clearance. Reasonable person test 1. Under s 30(1A)(a) of the WWC Act, before making an order which has the effect of enabling a person to work with children in accordance with that Act, the Tribunal must consider and be satisfied that a reasonable person would permit their child to have direct, unsupervised contact with the applicant in the course of any child-related work. 2. The reasonable person would be concerned by the offensive nature of the Disqualifying Offence and the applicant's level of intoxication during the incident such that he had only a vague recollection of his actions. 3. However, as a counter-balance, the reasonable person would be taken to have knowledge: 1. that the Disqualifying Offence and the related offence against property are the only offences on the applicant's record; 2. that the applicant has not been charged or convicted of any other offences in the last three years; 3. that there was no evidence to suggest that the applicant had behaved improperly towards children and it was very unlikely that a child would have been exposed to his behaviour in connection with the Disqualifying Offence; 4. of the applicant's sincere expressions of regret and remorse for his conduct; 5. of the character reference of Mr S as well as the references provided to the Presiding Magistrate attesting to the applicant's good character and contrition. 1. On the evidence before us, we are satisfied under s 30(1A)(a) of the WCC Act that a reasonable person would allow his or her child to have direct, unsupervised contact with the applicant while he is engaged in child-related work. Public interest test 1. Under s 30(1A)(b) of the WWC Act, before making an order which has the effect of enabling a person to work with children in accordance with that Act, the Tribunal must also consider whether it is in the public interest for the applicant to be given a clearance. 2. Consistent with the reasoning in ZZ, the applicant's "private interests" to work as a school teacher and to be involved in coaching junior sports are factors to be taken into consideration where a community benefit is derived. There is no question that the education of young people yields positive benefits for the community and is in the public interest. 3. Likewise, coaching in junior sports is recognised as providing valuable input into the community for improved health, the development of physical education and sporting skills for young people, and is in the public interest. It is clear to the Tribunal from the applicant's involvement in numerous community sports programs, and various character references, that he is motivated to have a positive impact on the lives of young people through his coaching activities. 4. In the absence of any risk to the safety of children, there are no clear public interest considerations to suggest that it is not in the public interest for this applicant to be granted a clearance. 5. We are thus satisfied under s 30(1A)(b) that it is in the public interest to make the enabling order and for the Children's Guardian to issue the applicant with a clearance. ORDERS 1. Accordingly, we make the following orders: 1. Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of "Aggravated – carry out sexual act with etc another person without consent" contrary to s 61KF(1)(a) of the Crimes Act 1900 (NSW) in relation to which the applicant was sentenced on 29 October 2020 to a conditional release order with no conviction recorded. 2. Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal further orders the Children's Guardian to grant the applicant a clearance forthwith. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2023