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 1. 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. 2. 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. 3. 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." 1. 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 1. 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 1. 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). 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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 1. 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. 2. 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. 3. 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. 4. The respondent opposed the application, opposed the request for an order awarding costs, and sought an order to have the Refusal Decision affirmed. 5. 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 1. 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. 2. 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 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. The applicant did not respond to the Tribunal's direction to make submissions. 10. 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. 11. 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. 12. 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 1. 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 1. 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 1. The applicant gave evidence and was cross-examined during the hearing. Oral submissions 1. Both parties made oral submissions. Threshold matter 1: Calling of witnesses for cross-examination 1. 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. 2. 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. 3. 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. 4. 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 1. 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). 2. 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." 1. 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." 1. 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. 2. 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." 1. 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." 1. 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). 2. 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. 3. 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, …" 1. 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 1. 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." 1. 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. 2. 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 1. 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. 2. 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. 3. 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 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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 1. 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. 2. 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. 3. 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. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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 1. 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. 2. 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. 3. 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. 1. In this matter, there are no matters specified in Schedule 1 that apply to the applicant. 2. 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. 1. 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." 1. 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". 2. 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). 3. 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. 4. 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. 5. 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. 6. 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). 7. 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. 8. 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". 9. 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. 10. 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). 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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 1. 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. 2. 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]. 3. 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. 4. 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." 1. 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. 2. 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: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." Background Family and general history 1. The applicant is 67 years of age, married, with three step-children and four step-grandchildren. 2. He is a member of an evangelical Pentecostal church and holds strong views on homosexuality because of his religious beliefs. He has made many statements about those views on social media which has attracted civil litigation against him for unlawful homosexual vilification. 3. The applicant was involved in a near fatal car accident in 1978, resulting in him being in a coma for three months and working in a sheltered workshop environment for two years. By his own account, he has remnants of a medically diagnosed MVA frontal lobe brain injury. He described his condition as like a developmental disability that affects his short term memory and, to some extent, his impulse control and judgment. 4. Despite his brain injury, the applicant pursued higher education, obtaining a Bachelor of Social Science in 1998 and Master of Commerce in 2004. Additionally, he has undertaken various certificate courses including courses in public relations, marketing and business administration. 5. As a result of his accident, he received a lump sum compensation and owns his own home, although we understand he has suffered bankruptcy. 6. Information on the applicant's work history is scant, although we know he was a Naval Officer on the Aircraft Carrier HMAS Melbourne early in his career. We also know he worked as a taxi driver, having been issued with a taxi driver authority on 6 August 2003. His taxi driver authority was suspended on 12 February 2009 pending a medical assessment and consideration of complaints against him. His driver authority was reinstated before finally being cancelled on 6 December 2013. 7. We understand that the applicant has not been engaged in paid work since that time although he appears to have participated in "work for the dole" activities involving "doing Newsletters for Charity organisations" during 2017. We note that, otherwise, he has pursued full-time university study for a number of years. 8. A reference from a pastor in the church where the applicant is a long-time member, confirmed that the applicant had provided services to the church in a volunteer capacity twice weekly, by running errands. The pastor confirmed that he had known the applicant for 40 years and that, more recently, he was only coming in (to the church) sporadically, as he was focusing on his health. Application for working with children check clearance 1. The applicant applied for a volunteer clearance on 4 March 2019, nominating "residential Services" as the child-related sector. He subsequently clarified in a letter dated 18 May 2023 to the Guardian that he wanted a clearance for the "opportunity to do voluntary work or teach Bible studies to children in his local church". 2. On 25 July 2019, the (then) Children's Guardian advised the applicant that, pursuant to s 15 of the Act, she would be undertaking a risk assessment based on the records that had been made available and the seriousness of the applicant's total criminal record. The records identified an alleged "serious assault" in 2014 and a number of allegations of "use carriage service to menace/harass/offend" in 2019, 2017 and 2013. The Guardian's letter asked the applicant to complete a statutory declaration, outlining his criminal background. He was asked to provide answers to a number of questions relevant to the risk assessment. 3. On the same day, 25 July 2019, he emailed the Guardian, stating that he needed a clearance and that he wished to challenge the record concerning a "serious assault" as it was wrong, and he had no such record. 4. On 27 July 2019, he again emailed the Guardian, stating that all the charges were minor and had resulted from gay rights activists attacking him for 10-15 years due to civil actions through the Anti-Discrimination Board and the NCAT. 5. On 29 July 2019, the Guardian sent an email to the applicant, explaining that all charges against him, and not only convictions, were taken into account in a risk assessment. The Guardian's email stated that if he disagreed with the police charges listed in the Risk Assessment Notice, he could do so in writing within the statutory declaration that he had been asked to complete. The Guardian also advised that the 2014 record of "serious assault" was not related to a charge, but that the Guardian had received a notification regarding complaints made against the applicant during the course of his employment as a taxi driver. The applicant was required to respond by 25 October 2019, failing which his application would be closed. 6. In a letter dated 16 October 2019, the applicant advised the Guardian that it had not been his idea to apply for a clearance, but he was told to apply by "NewStart". At the time, he was enrolled in full-time study for his third university degree. It appears that, associated with the difficulty the applicant was experiencing in finding employment, it had been suggested that he volunteer to work with charitable organisations which might involve working with both adults and children. 7. In his letter, the applicant stated that police charges against him which had failed in court were of the utmost triviality based on vexatious complaints made by a homosexual rights activist. The applicant stated that homosexual rights activists filed complaints with the Anti-Discrimination Board at no cost and the complaints were referred to the NCAT for awards of compensation. He indicated that awards of money to successful litigants had caused him to be bankrupt. The applicant further stated that homosexual rights activists wanted to destroy him because of his religious conviction that opposes their 'agenda'. 8. The applicant's letter attached a copy of a letter he had written around 12 months previously, to "Workskil" (we understand this to be "Workskil Australia", a not-for-profit employment services provider). His letter to Workskil sought an alternative plan for generating his own income rather than hoping to find employment. The applicant believed he was being "demonised" in the media for his stance against homosexuality, and that as a result no employer would be interested in offering him work. 9. In email correspondence dated 30 June 2021 (almost two years later), the applicant enquired about his application. He stated that an error appeared to have been made in his application because he had no criminal record. He stated that he believed political activists from the LGBTQI activist groups who had been harassing him for 15-20 years may have made false and vexatious complaints against him to the Guardian. 10. The following day, on 1 July 2021, the Guardian responded by email, explaining that when assessing an applicant's criminal history, a number of matters are considered. They include convictions (spent or unspent), charges (whether heard, unheard or dismissed), juvenile records, workplace records and a person's pattern of behaviour that causes concern. The Guardian's email referred to previous correspondence between the parties in 2019 and again asked the applicant to complete the requested statutory declaration, and stated that a Risk Assessment Officer would be in touch to confirm allocation of his application and finalise the assessment. 11. Further email correspondence dated 16 and 28 September 2022 from the Guardian to the applicant noted that the additional information requested had not been provided. In both emails, the Guardian advised him that if he no longer required a clearance, he could request to withdraw his application, subject to review by the Guardian. 12. In a telephone conversation on 16 September 2022 with a Risk Assessor, the applicant advised that he was undergoing tests to determine whether he had Parkinson's Disease. 13. The applicant responded on 14 October 2022, referring to his previous 85-page submission dated 16 October 2019, and setting out a general chronology of correspondence between the parties. He foreshadowed that he intended to obtain legal advice about submitting a freedom of information request, to seek to obtain details and the source of what he asserted was false information relied upon by the Guardian. 14. Then, on 30 November 2022, the applicant advised the Guardian that he would ask for another reference to assist in the risk assessment. 15. On 4 May 2023, the Guardian advised the applicant that further information had been received from external agencies, and asked him to provide additional information (by 18 May 2023) in relation to a number of matters including: 1. his current circumstances, employment history over the last 10 years, whether he was receiving any counselling or NDIS (or other) support, and the reason why he sought a clearance; 2. his acquired brain injury and information around how he intended to manage his impulse control when working with children; 3. his version of events in relation to a record of "indecent exposure" in 1977, including what led to the charge, what he could have done differently and how he has mitigated concerns relating to alcohol misuse; 4. reports of his inappropriate behaviour which resulted in his taxi and bus licences having been revoked in 2012, and how the Guardian could be assured the behaviour would not re-occur if he worked in child-related employment; 5. his conduct as referred to in a number of ACAT and NCAT decisions from 2017, 2018, 2022 and 2023 concerning his alleged engagement in concerning behaviour by vilifying people from the LGBTQIA+ and religious communities online, after orders were made requiring him to cease engaging in that conduct. The applicant was also asked how the Guardian could be assured that his behaviours would not continue in child-related work which may include contact with the LGBTQIA+ community and other vulnerable children; 6. allegations that he had posted on his "Blog" on 18 April 2013 that he had been involved in sexual relations with an "underage girl" which his wife had knowledge of, as payment for the service of a taxi fare, and that he continued to meet with her sometimes. The applicant was asked to advise why he had posted this information about a child online and whether he had any other comments to make in relation to the allegation. 1. On 18 May 2023, the applicant advised the Guardian that he had been the subject of a stalking and hate campaign since 1998 by homosexual activists whom he suspected had directly or indirectly communicated lies about him to the Guardian. He advised that at the time when he applied for a clearance, he would impulsively send out many tweets every day, and that his tweets had unwisely contained personal information, including information that he had applied for a clearance. The applicant acknowledged that his tweeting was possibly an "addiction". He stated that his opponents' goal was to thwart his application and then use the failure to be granted a clearance to publicly attack him, saying he is a paedophile and a risk to children. 2. On 15 June 2023, the Guardian advised the applicant of the proposal to refuse his application for a clearance, and invited him to provide further information before a final decision would be made. 3. On 6 July 2023, the applicant responded to the Guardian's proposal to refuse to grant him a clearance. In addition to arguing that the Guardian had excessively weighted negative risk factors against him, he stated that he believed the Guardian had found his application difficult and challenging due to "contentious and controversial political considerations". The applicant advised the Guardian that he had been recently diagnosed with Parkinson's Disease. He offered to withdraw his application for clearance. As an alternative, he suggested that his application be left "in abeyance forever", deferred indefinitely. This, he argued, would mitigate against the risk of him being publicly vilified and victimised on the grounds that he had been refused a clearance. 4. By email dated 18 July 2023, the applicant formally asked to withdraw his application. 5. On 20 July 2023, as already noted, the Guardian refused to allow the applicant to withdraw his application on the grounds set out in s 13AA(2) of the Act. 6. On 25 July 2023, the applicant's email to the Guardian appears to state that he will not accept a "refusal" of a clearance, fearing that this would result in his name being included in a paedophile register in Australia. He asked the Guardian to reconsider the decision to not allow him to withdraw his original application for clearance. 7. Then, on 28 July 2023, the applicant advised the Guardian that his circumstances had changed and he no longer needed a clearance. He acknowledged that the Guardian had refused his request for his application to be indefinitely delayed and had refused his request to withdraw his application. He asked for a pause of six months before his application for clearance was determined by the Guardian, to allow him time to consider issues that were important to him. 8. On 3 August 2023, the Guardian advised the applicant that the risk assessment had been concluded and his application for clearance had been refused. The Guardian also determined there was insufficient reason for delaying the outcome, and denied his request for a 6-month delay. 9. On 21 August 2023, the applicant applied for administrative review of the Refusal Decision. Applicable legislation and legal principles Object of the Act: Protection of children 1. The protective jurisdiction of the Act is plainly evident from its stated object which is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have a clearance. Section 3 relevantly provides: "3 Object of Act The object of this Act is to protect children- (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances." Paramount consideration: Safety, welfare and well-being of children 1. The paramount consideration in the operation of the Act is 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." Jurisdiction of the Tribunal is protective towards children, not punitive 1. The object of the 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 No 2") at [26]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34] ("AYU") at [34]. 2. Having regard to the paramount consideration, the jurisdiction of the Tribunal under s 27 of the Act is protective, and not punitive, in nature: DAI v Children's Guardian [2017] NSWCATAD 308 at [8] ("DAI"'); AYU at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. 3. The risk of potential injustice to an applicant who may be innocent of allegations, yet is refused a clearance, is subordinated to the protective jurisdiction of the Act as emphasised in CXZ v Children's Guardian [2020] NSWCA 338 ("CXZ") per Simpson AJA at [58]: "It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children." Child-related work requires a WWCC clearance 1. A worker must not engage in "child-related work" unless the worker holds a clearance of a class applicable to the work or there is a current application for a clearance before the Guardian: s 8(1) of the Act. 2. There are two classes of clearance: volunteer and non-volunteer: s 12 of the Act. Meaning of "child-related work" and "residential services" 1. The meaning of "child-related work" is set out in s 6 of the Act. Work that is referred to in s 6(2) of the Act that involves direct contact by a worker with a child or children and that contact is a usual part of and more than incidental to the work is defined as "child-related work" for the purposes of the Act. 2. In this case, the applicant nominated "residential services" as the child-related volunteer work for which he required a clearance. Under s 6(2) of the Act, work in "residential services" means work in "refuges used by children, long term home stays for children, boarding houses or other residential services for children and overnight camps for children." Test to be satisfied that a person is not a risk to the safety of children 1. Under s 18(2) of the Act, the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless it is satisfied that the person poses a risk to the safety of children. No presumption that the applicant poses a risk to the safety of children 1. In undertaking this administrative review, there is no presumption that the applicant poses a risk to the safety of children. Neither party bears the onus of proof. However, the applicant has a statutory obligation under s 27(4) of the Act to fully disclose to the Tribunal any matters relevant to the application. Definition of "children" and the meaning of "risk to the safety of children" 1. "Children" is defined in s 5(1) of the Act to mean "persons under the age of 18 years". 2. The meaning of "risk to the safety of children" is defined in s 5B of the 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 v Office of Children's Guardian [2015] NSWSC 523 ("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 v Children's Guardian [2020] NSWCA 338 ("CXZ") per Basten JA at [26]. Meaning of "safety of children" includes their psychological safety 1. Whilst the Children and Young Persons (Care and Protection) Act 1998 ("CYP Act") has no direct application to the facts of this case, ss 23 and 227 of the CYP Act and relevant caselaw demonstrates that psychological harm is a recognised category of harm. 2. Section 23 of the CYP Act refers to a child's or young person's psychological needs as a relevant matter of concern when assessing if they are at risk of significant harm, and refers to a child or young person being at risk of suffering psychological harm in particular circumstances: "23 Child or young person at risk of significant harm (1) For the purposes of this Part and Part 3, a child or young person is at risk of significant harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent, of any one or more of the following circumstances- (a) the child's or young person's basic physical or psychological needs are not being met or are at risk of not being met, …" 1. Section 227 of the CYP Act relevantly provides: "227 Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in- ... (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or … is guilty of an offence." 1. In FKZ v Children's Guardian [2023] NSWCATAD 169 at [237], [259] and [271], the Tribunal gave weight to a number of separate instances in which the applicant had exposed a child to psychological harm. 2. In cases such as CJF v Children's Guardian (No 3) [2022] NSWCATAD 124 ("CJF"), at [184], CEJ v Children's Guardian [2016] NSWCATAD 164 ("CEJ"), at [78] and EJA v Children's Guardian [2021] NSWCATAD 202 ("EJA"), at [116], the Tribunal has been concerned by the possibility of psychological harm being caused to children, in assessing the risk posed by the applicants in those cases. Clearances are issued without any restriction 1. A person who is granted a clearance can work in child-related employment without any restrictions or conditions imposed. The Tribunal has held that an order under s 27 of the Act should not be made subject to conditions: DGS v Children's Guardian [2018] NSWCATAD 302 at [56]-[66]; BJB v children's Guardian (No 2) [2014] NSWCATAD 164 at [36]-[45]. Working with children register 1. Under s 25 of the Act, the Guardian is required to establish a working with children register which must be accurate and kept up-to-date. The register contains particulars of applications for working with children clearances, including the applicant's name and personal details, as well as the status of an application (including whether the applicant is subject to an interim bar) and any determination to refuse the application. It also contains particulars of clearances, including the clearance holder's name and personal details, and whether the clearance holder is subject to an interim bar or has had a clearance cancelled: s 25(b) of the Act. 2. The register is not a "public" register in the sense that any member of the community or the general public can access it or the information it contains. Section 25(5) of the Act relevantly provides: "25 Working with children register (5) The Children's Guardian must make information on the register available to an employer, licensing authority or responsible agency carrying out a verification in respect of a person under section 9A, 9AA or 11B to the extent that the Children's Guardian considers the information to be relevant for the purposes of the verification or for informing the employer, licensing authority or responsible agency of any interim bar, refusal of an application or cancellation of a clearance." Conduct of risk assessment under s 15(3) of the Act 1. As previously noted, ss 15(1) and 15(2) do not limit the circumstances in which the Guardian may conduct a risk assessment under s 15(3) of the Act. 2. Also as previously noted, a risk assessment conducted pursuant to s 15 of the Act, is guided by the provisions of s 15(4). 3. However, under s 15(4A) of the Act, the Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Guardian is satisfied that the "reasonable person" and "public interest" tests are met: "(a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination." Mandatory considerations under s 30(1) of the Act 1. In determining this application, 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." Further considerations under s 30(1A) of the Act 1. In addition, if the Tribunal is considering making an order enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the 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." 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 No 2 at [26]. 2. The legislation in Victoria contains provisions similar to those in s 30(1A) of the 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 the 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." 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. 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. Accordingly, in proceedings under the Act, the "public interest" must be considered in light of the paramount purpose of the Act, namely, to ensure the protection of children from sexual or physical harm: s 4 of the Act. 2. 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." 1. 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 No 2 at [75]. 2. If the Tribunal is not satisfied that an applicant has met either of the first or second limbs in the two-part test, it is precluded from making an order enabling the applicant to work with children. The approach to fact finding and the assessment of risk 1. The approach to fact finding and the assessment of risk in the context where the safety, welfare and well-being of children is paramount and the question to be addressed is whether a person poses a risk of harm to children, was explained in BKE at [33]: "Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven." 1. That approach to fact finding has been approved by the Court of Appeal in Tilley v Children's Guardian [2017] NSWCA 174 ("Tilley") at [34]-[45] and in CXZ per Simpson AJA at [57]: "The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. [emphasis in original] If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children." 1. Thus, relying upon the analysis in CXZ at [51], many cases will not lend themselves to definitive factual determination. Where an allegation is neither "well founded" nor "groundless", the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53]. 2. More recently, in Children's Guardian v CF1 [2020] NSWSC 1673, citing BKE, the Supreme Court of New South Wales, per Davies J at [11], articulated the fact finding task as being one of asking what findings can be made in relation to allegations when determining whether an applicant poses a real and appreciable risk to the safety of children. His Honour put forward the three possibilities: "[11] There are three possibilities. We may be satisfied that such the allegations have been established. Alternatively, we may be satisfied that the relevant conduct did not occur. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, we may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident, or course of conduct, means that the existence of a risk has not been disproven: Children's Guardian v CKF [2017] NSWSC 893 at [55]; BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]." 1. A positive finding by the Tribunal that alleged conduct has taken place will generally be determinative of an application: Office of the Children's Guardian v CFW [2016] NSWSC 1406 ("CFW") at [14]-[15], per Justice Harrison: "The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless"." 1. Clearly, however, it is the third possibility, where the Tribunal may not be satisfied that an allegation has been established but the circumstances surrounding a particular incident or course of conduct are such that the existence of a risk has not been disproven, that requires consideration in the context of the protective jurisdiction being exercised under the Act. 2. Further, in determining an application, the Tribunal is required to consider the "totality of the evidence": BKE at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84], and the "cumulative effect" of the matters before it: CYY No 2 at [69]-[71]. Standard of proof 1. The standard to which the Tribunal must be satisfied before making a positive finding in relation to an allegation is the civil standard, that is, on the balance of probabilities, and not the criminal standard: CFW at [14]-[17], subject to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 ("Briginshaw"). The Briginshaw principle can broadly be described as a standard of satisfaction to be reached where serious allegations are concerned. Put simply, serious allegations with serious consequences require more compelling evidence for the decision maker to reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist. The applicant's case 1. The key arguments put forward in support of the applicant's case were that: 1. with respect to all matters of complaint against the applicant (as assembled in the s 58 Bundle), none involve or concern children, directly or indirectly; 2. the applicant does not have a pattern of online harassment against vulnerable communities; 3. the LGBTQIA+ community is not 'vulnerable', and there is no evidence to support such a categorisation; 4. the proposition, that the applicant's homophobic statements on the Internet could be linked with psychological harm to children, was fanciful and absurd; 5. with respect to his online comments on homosexuality, there is no "child complaint" or "child victim" and no evidence before the Children's Guardian that children have been directly harmed as a result of the applicant's conduct, and the respondent's case is theoretical and speculative; 6. with respect to his "indecent exposure" and "use of carriage service offences", these ought to be categorised at the lowest end of the punishment spectrum; 7. that with respect to complaints about the applicant's behaviour as a taxi driver and the cancellation of his taxi driver authority by the Roads and Maritime Services ("RMS"), these were part of an endless spiral of animosity towards him, (citing some 25 cases against him from 2005 - 2018 in the ADT and the NCAT); 8. that with respect to complaints against him in the ACAT and NCAT for discrimination due to the publication of his comments on the Internet against the practice of homosexuality: 1. the complaints are repeatedly and systematically made by five individuals (all adults) from the LGBTQI+ community acting in consortium against him with "anima and acrimony", and are not from disparate complainants; 2. further, as evidence of the acrimony between one of the key complainants ("GB") and the applicant, NSW Police have noted that the acrimonious atmosphere around allegations and counter-allegations between the two men must be taken into account when assessing anonymous allegations received against either party; 3. the applicant continues to resist, with just cause, what he regards as the onslaught of public attack and humiliation with vexation from those complainants. [Notes: In deciding this application for review, the Tribunal does not delve deeply into the discrimination complaints against the applicant, but acknowledges his submissions in relation to them for the purpose of his application for review, as set out above. In describing the relationship between the applicant and his opponents in proceedings in which the applicant was found to have vilified homosexuals, the applicant's submissions repeatedly use the term "anima", either alone or in a phrase "anima and acrimony". The context in which the term "anima" has been used, is unclear. In the absence of explanation as to its linguistic origin, the term appears to be eclectic, although we understand it is intended to convey the same meaning as "animosity". For that reason, we have taken the term "anima" to be a reference to the alleged long-standing anger and rancour between the applicant and his opponents in those anti-discrimination proceedings.] The respondent's case 1. The key arguments relied upon by the respondent were that: 1. for the purpose of the Act, the safety of children includes their psychological safety; 2. gay and lesbian young people are vulnerable and psychologically disadvantaged, which must be taken into account when assessing the risk posed by the applicant to the safety of children; 3. the documented evidence before the Tribunal is that publicly made homophobic comments pose a risk to the psychological and physical safety of lesbian and gay children (such as poorer mental health outcomes, depression, suicidal ideation and self-harm); 4. the applicant poses a risk to the psychological safety of lesbian and gay children because of his public homophobic comments which are publicly available on his YouTube Channel. The comments use derogatory language which demonstrates prejudice against lesbian and gay people. They include pronouncements that the applicant will not recant his comments, and are evidence of his entrenched homophobia as also demonstrated by multiple anti-discrimination cases in the Tribunal involving the applicant. To the extent that the applicant denies an intention to be prejudicial or homophobic, such an intention is irrelevant given the substance and extent of his comments; 5. the applicant is impulsive and disinhibited, as a result of a medically diagnosed MVA frontal lobe injury in 1978, and is likely to continue to repeat his offending conduct; 6. the applicant does not have insight into the harmful effect of his behaviour on gay and lesbian children and denies that LGBTQIA+ people are "vulnerable"; 7. the applicant may fail to act protectively towards a gay or lesbian child since: 1. he has an incorrect understanding of the definition of "child" for the purpose of the Act; 2. he has a discriminatory approach towards lesbian and gay people and a clearance cannot be granted on the condition that the applicant would only work with heterosexual children; 3. he would not know what to do if required to work with a lesbian or gay child; 4. his criminal history and allegations against him demonstrate he has a history of engaging in inappropriate, sexual behaviour towards women and a female child, having regard to his conviction for indecent exposure in 1977; a report in 2010 that he, when working as a taxi driver, approached staff at a nightclub and asked if they had any "intoxicated females who needed a taxi"; and an allegation that the applicant blogged about having sex with a underage Aboriginal girl in exchange for the taxi fare; 1. the applicant has a history of non-compliance with Tribunal orders which suggests he may be unable, or unwilling, to follow lawful directions from authorities or a supervisor in the context of the workplace; 2. the "reasonable person" test is not satisfied (noting that the Tribunal found he was not a fit and proper person to hold a taxi driver authority because of a number of complaints made by members of the public about his conduct); 3. the "public interest" test is not satisfied since the primary consideration should be the safety welfare and wellbeing of children, and there is no evidence that the applicant needs a clearance. Consideration 1. The Tribunal's consideration of matters relevant to its determination is not limited to the mandatory matters set out in s 30 of the Act. 2. The applicant's submissions sought to compare the matters raised in the Notice of Risk Assessment against the matters set out in the Notice of Proposed Refusal and the matters cited in the Refusal Decision. To the extent that the applicant appeared to make those comparisons in order to demonstrate inconsistency in the Guardian's reasoning, it is to be appreciated that the Guardian's decision to refuse to grant a clearance occurs at the end of a risk assessment process and, in this particular case, that process took place over a period of almost four years, with an accumulation of information made available over time. 3. The material before us includes the information that was made available to the Guardian, as well as the parties' evidence filed in these proceedings (including the YouTube Videos, the La Trobe University report and the ABS Article), the parties' submissions/legal argument and the applicant's oral evidence. Reason for clearance 1. Perhaps because of the period of time during which the risk assessment was conducted, the applicant's position on both why, and whether, he needed a clearance, has changed significantly. 2. Initially, he applied for clearance as a volunteer, with the possibility of engaging with charitable organisations, to work with both adults and children. Nominating "residential services" on his application, he subsequently expanded his reason for clearance to include possibly teaching Bible studies to children in his church. 3. Subsequently, in legal argument before this Tribunal, the applicant contended (somewhat obliquely, in our view) that the 5 year ban accompanying the refusal of his clearance operated to render his driving career to be over. 4. However, the applicant's work as a driver (non-voluntary) was never put forward as a reason for needing a clearance. Moreover, the applicant's taxi driver authority had already been cancelled in 2014. 5. Then, in oral submissions (and confirmed in his oral evidence), the applicant contended that his working days are over and he does not intend to re-apply, and that there is therefore no utility in affirming or upholding the decision to refuse him a clearance. This argument, however, contradicts his complaint that the five year ban accompanying the refusal of his clearance, put an end to his working life. 6. We accept that the applicant's circumstances have changed over time and that his medical condition now heavily impacts upon his future planning. Nonetheless, in this case, it was always understood that the applicant's request for clearance was in the capacity of a volunteer, and not as a paid employee. 7. Setting aside those arguments that have caused confusion as to the reason for seeking clearance, we have determined this review on the basis of the applicant's desire to undertake volunteer work, potentially teaching Bible studies to children and young people in his church. 8. It is important to note that clearances are not issued with restrictions or made subject to conditions. It is not possible, for example, to grant the applicant a clearance on the condition that he refrains from making public homophobic statements or that his clearance would be on the condition that he only works with heterosexual children. Applicant's oral evidence at the hearing 1. In response to a question put to him, as to whether he believed the Guardian's decision to refuse to grant him a clearance was because of biased caselaw and political correctness by LGBTQIA+ members, the applicant answered "yes". 2. In response to questions put to him, that he did not consider that LGBTQIA+ persons were a vulnerable community and that there was no evidence that gay and lesbian people are vulnerable, he also answered "yes". 3. When it was put to him that he believes his comments on homosexuality are harmless, the applicant agreed that that was correct. 4. When asked whether he believed a 17 year old is not a child, he said that legally, they are a child but that in 12 months' time, they are not a child. 5. The applicant said that if granted a clearance, he did not think he would have contact with children. When asked what he would do if he was required to work with gay and lesbian children, he said that he would mention nothing about gay and lesbian people. 6. The applicant was questioned about the answers he had provided during the application process (on 16 September 2022). He had been asked what would happen if he came across a child or young person who identified as part of the LGBT community or was gender-diverse. He said that he would speak to his supervisor and request not to work with that child. He had been asked what would happen if no one else was available to approach to speak with the child or young person, and said that he wouldn't know what to do in that instance. However, when asked again, under cross-examination, about what he would do, the applicant said that he would work with that child. 7. Under re-examination, the applicant said that he was retired, receiving a pension, and attending university, and had wanted to withdraw his application for clearance or keep it in abeyance. 8. In response to a question as to whether he was aware of the legal definition regarding the age of a child, the applicant said that he was aware, and did not elaborate further on his understanding of the term. 9. When asked about his medical condition, he said that he had been involved in a car accident in 1978 and had experienced lots of problems as a result, and that he had recently been diagnosed with Parkinson's Disease. He said that he had been a professional taxi driver but had recently experienced a collapse when getting off a bus, and had handed in his personal driver's licence. 10. The applicant said that his working days were over and he might do academic work. 11. In response to a question about what purpose a clearance refusal would serve, the applicant said that if he went overseas, not having a clearance could hinder his passage through Immigration. 12. When asked if he intended to apply again for a clearance, he said he had no further need for a clearance. Reports tendered as evidence of the causal link between stigma/abuse on one hand and poorer mental health outcomes for the LGBTQIA+ community on the other hand 1. As previously noted, the following reports were filed by the respondent, and accepted into evidence by the Tribunal, for its consideration. LGBTIQA+ Health Australia Statistics (October 2021) 1. In a report titled "Snapshot of Mental Health and Suicide Prevention - Statistics for LGBTIQ+ People", dated October 2021 ("Statistics for LGBTIQ+ People"), contained within the s 58 Bundle, LGBTIQA+ Health Australia provided a snapshot of what was then known of the mental health and wellbeing outcomes of LGBTIQ+ people in Australia. 2. The document acknowledged methodological issues relating to representative data collection and data analysis, and the risks of conflation and reaching conclusions that are not representative, due to reliance on smaller scale studies that target LBGTIQ+ populations. Nonetheless, the statistics for suicide attempts and suicidal ideation, self-harm and mental health outcomes, depression and psychological distress, particularly for young people aged 16 to 17, were compared against the general population, as follows: 1. LGBTIQ+ young people aged 16 to 17 are: 1. almost three times more likely to have attempted suicide in the 12 months prior to October 2021; 2. almost five times more likely to have attempted suicide in their lifetime; and 3. over five times more likely to have experienced suicidal ideation in the twelve months prior to October 2021. 1. LGBTIQ+ people with an intersex variation aged 16 and over are nearly five times more likely to experience suicidal ideation. 2. LGBTQA+ young people are over four times as likely to engage in self-injury, and those who experience abuse and harassment are even more likely to have self-hatred. 3. LGBTIQ+ people are more likely to experience and be diagnosed with a mental health condition and depression. 4. LGBTQA+ young people aged 16 to 17 are over three times more likely to report high or very high levels of psychological distress. LGBTIQA+ Health Australia conclusion 1. Significantly, the research concluded the following: "Although many lesbian, gay, bisexual, transgender, intersex, queer people and other sexually and gender diverse (LGBTIQ+) people live health and happy lives, research has demonstrated that a disproportionate number experience poorer mental health outcomes and have higher risk of suicidal behaviours than their peers. These health outcomes are directly related to experiences of stigma, prejudice, discrimination and abuse on the basis of being LGBTIQ+." La Trobe University Report (February 2021) 1. The La Trobe University published a national report titled "Writing themselves in 4 - The Health and Wellbeing of LGBTQA+ Young People in Australia" dated February 2021 ("Writing themselves in 4"). 2. The report observed significant differences between the mental health and wellbeing of LGBT communities and the general population. In particular, the report noted very high rates of psychological distress, self-harm, suicidal ideation and attempted suicide in LGBT young people, as noted below: 1. Research in Australia and internationally has observed that young LGBT people experience frequent harassment based on their sexuality or gender identity. Young LGBT people who experience harassment based on their sexuality or gender identity face higher risk of suicidal ideation and behaviours. 2. In the 12 months prior to February 2021, two-fifths of participants had experienced verbal harassment, almost one-quarter sexual harassment or assault, and almost one-tenth physical harassment or assault based on their sexuality or gender identity. 3. A study of young LGBT people found that perceived discrimination was associated with increased depressive symptoms, and accounted for an elevated risk of self-harm and suicidal ideation. LGBT young people have also been found to be at further risk of major depression generalised anxiety disorder, suicidal ideation and suicide attempts, compared to the general population. 4. Using the Kessler Psychological Distress Scale (K10), the proportion of participants aged 16 to 17 years who experienced very high levels of psychological distress was reported as showing K10 scores of 54.0 compared to 11.0 in the general population. La Trobe University conclusion 1. Significantly, the report concluded that poorer mental health and wellbeing among LGBTIQ+ people has been attributed to stigma, prejudice and discrimination which create a hostile and stressful social environment. ABS Article (February 2024) 1. The Australian Bureau of Statistics released its article "Mental Health Findings for LGBTQ+ Australians" on 27 February 2024 ('the ABS Article"). 2. The ABS Article reported the following statistics: 1. People in LGBTQ+ communities often experience stigma, discrimination, bullying violence and exclusion. As a result, a higher number of people in LGBTQ+ communities experience poorer social, emotional and psychological wellbeing and mental health. 2. In general, LGB+ people were more likely to experience a mental disorder than heterosexual people. Of all LGB+ people, three in four (74.5%) had experienced a mental disorder at some time in their life, compared with 41.7% of heterosexual people. 3. Almost half of all LGB+ people (43.9%) had high or very high levels of psychological distress compared with just over one in seven heterosexual people (15.4%). 4. Almost half of all LGB+ people (47.8%) had seriously thought about taking their own life at some point in their lifetime, compared with just over one in seven heterosexual people (15.3%). 5. More than two in five of all LGB+ people (41.2%) had self-harmed in their lifetime, compared with 7.4% of heterosexual people. 6. As to the prevalence of mental disorders, the proportion of non-binary people who had experienced a mental disorder at some time in their life was double the rate of both men and women, while the proportion of non-binary people with a 12-month mental disorder was more than three times the rate of either men or women. ABS conclusion 1. Significantly, the ABS Article also concluded that people in LGBTQ+ communities often experience stigma, discrimination, bullying, violence and exclusion. As a result, a higher number of people in LGBTQ+ communities experience poorer social, emotional and psychological wellbeing and mental health. Tribunal's consideration of the reports 1. These three reports provide probative evidence of the causal link between the disproportionate number of LGBTIQ+ people (compared with the general population) who have poorer mental health as a direct result of their experiences of stigma, prejudice, discrimination and abuse on the basis of being LGBTIQ+. The statistics are compelling, demonstrating the vulnerability of gay and lesbian people, and particularly with respect to young people in the range of 16 to 17 years of age. Mandatory considerations in s 30(1)(a)-(k) of the Act 1. In determining the application, we are obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the Act. 2. In evaluating the evidence before us, it is not necessary for this Tribunal to find that the offences or the alleged conduct occurred. It is sufficient to conclude that it is possible that the alleged conduct occurred before then proceeding to consider whether, based on the allegations, the applicant poses a risk to the safety of children by reason of the possibility that the alleged conduct occurred. 3. The Act does not require that a person has been harmed, in order to apply the test in s 18(2) of the Act. The test is whether an applicant for clearance poses a risk to the safety of children, and not that an applicant has harmed children. 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. In assessing the seriousness of the matters that we consider are relevant in determining whether the applicant poses a risk to the safety of children, we first consider his publicly made statements on the YouTube Videos. We then consider his criminal history as well as complaints and allegations made against him by members of the general public in the context of his work as a taxi driver. The applicant's statements on YouTube Videos 1. The applicant's statements, which we understand were uploaded onto his platform on YouTube in 2015 and 2016, remain publicly available and accessible, and are thus considered to be current. 2. Drawing from the Aide Memoire provided by the respondent, we set out below a range of the applicant's statements on YouTube videos: "Same sex marriage could lead into bestiality and also paedophilia and also things such as brothers and sisters having incest." "Same sex marriage is … literally mutual masturbation between two people of the same sex … it also generates paedophiles through this event." "From now on I'll talk about homophobia, and how homophobia is a good thing, not a bad thing. People have homophobia to protect themselves from paedophiles and other forms of criminals." "Same sex marriage equals child paedophilia … I will not change on the issue. Same sex marriage equals child paedophilia." "Homosexuality to me is a behavioural disorder brought on by the social conditioning of a person's lifestyle … it is not an inherent right, it is a want…Homophobia means nothing …". "Gay marriage is two poofters getting married." "It is impossible for two men or two women to love one another in a sexual way, if it is done, people have a psycho-disorder." "If I'm called homophobic, I'm bloody proud to be homophobic … it doesn't hurt anyone." "I'm willing to openly state and blatantly push that I'm homophobic and proud of it … I will not change … Willing to incite other people to do it too." "There's nothing wrong being homophobic … I'm only too happy to be homophobic, and encourage others to do the same." "Homophobia is not hate speech … it is to reject sin … I say yes to homophobia, yes we should be a homophobe. We should by all means be labelled homophobe and be proud to be labelled a homophobia. I am a happy little homophobe." "The whole of Australia should become homophobic … this is a call to Australia … to say yes to homophobia." "Full scale all out open jihad against fags … I will remain a homophobe for the rest of my life." "When it comes to sexuality, I am definitely a bigot. A homophobic bigot. That is what I revel in and that is what I recommend for everyone." "All paedophiles come through the deviant lifestyle of those in same sex marriage." "Same sex marriage is equivalent to same sex child paedophile rights." "Same sex marriage is mutual masturbation coupled with equal rights for paedophilia." "Paedophilia is rampant amongst the homosexual community. I refuse to accept anything else. I will not accept anything else." "Child pornography and homosexuality go together." "50, 60, 70% of the homosexual community are involved in child pornography." "Same sex marriage represents child paedophilia in marriage." "I am a homophobic bigot and I revel in it." "It is not natural to be homosexual." "The probability of child paedophilia is much greater amongst homosexuals than heterosexual groups." "There is more paedophilia amongst homosexuals." The applicant's arguments 1. The applicant's affidavit evidence is that he does not have a pattern of online harassment against vulnerable communities. In his letter of 16 October 2019 to the Guardian, he stated "I have done nothing wrong apart from maybe some injudicious words on social media". Further, in his defence, he denied that he vilified people, and asserted that he (himself) is vilified on the grounds of his religious convictions and his past disability (in his letter of 18 May 2023). 2. In his affidavit and oral evidence the applicant asserted that gay and lesbian people are not vulnerable. He contended there is no evidence that children who identify with the LGBTQIA+ community and who may be exposed to material such as the applicant's online comments, could suffer psychological and emotional harm. Tribunal's analysis and findings 1. As already noted in our summary of the applicable legislation and legal principles, psychological harm is a recognised category of harm which we take into account when assessing the risk posed by the applicant: CJF at [184]. 2. We accept the findings of the LGBTIQA+ Health Australia Report, the La Trobe University Report and the ABS Article as probative evidence that gay and lesbian people are vulnerable people who experience poorer health and wellbeing outcomes, as well as suicidal ideation resulting from experiencing stigma, discrimination, harassment and verbal abuse. The statistics cited in the reports and article are compelling, demonstrating that perceived discrimination is associated with increased depressive symptoms, and accounts for an elevated risk of self-harm in gay and lesbian young people. 3. The applicant's comments patently and blatantly vilify homosexuals, and we find them to be verbally abusive. The content of the material, the manner in which the content is delivered and the volume of material is harassing and bullying to the LGBTQIA+ community and, as a result, poses a risk to the safety of children who may be exposed to it. 4. The applicant states, in unequivocal terms, that he is proud to be homophobic. His comments are not subtle. They do not deal with trivial matters, but concern issues of serious psychosocial consequence. The language used is aggressive and highly offensive, declaring homosexual people to be wicked and evil, labelling them as child molesters and paedophiles, and equating homosexuality with bestiality and incest. The applicant uses derogatory terms such as "faggots", "poofs" and "poofters" to describe homosexuals. His comments portray gay and lesbian people as being psychologically unbalanced and immoral. He accuses them of engaging in criminal behaviour. 5. The applicant's oral evidence that his online comments are harmless demonstrates a lack of knowledge on his part about the recognised research into the harmful effect of homophobic comments which create a hostile and stressful social environment for gay and lesbian people, as well as a lack of insight into his behaviour and the impact it has upon gay and lesbian people. However, the applicant's own acknowledgment that his words may have been "injudicious", demonstrates some recognition on his part that they were ill-judged. 6. It is apparent, from the applicant's online statements, that his homophobic views are entrenched. He regards his reputation as being a "homophobic bigot" with pride, and declares that he will never, ever change his views. It is clear that he has no intention of withdrawing from his views and that he has every intention of continuing to express them and, indeed, inciting others to share them. We therefore also find that it is highly likely that the applicant will continue to express his homophobic views, and attempt to incite others to do likewise. 7. Further evidence of the entrenched nature of the applicant's behaviour is demonstrated by the multiple anti-discrimination cases involving him in cases from 2005 to 2023. The applicant has been found by the NCAT and the ACT Civil and Administrative Tribunal to have engaged in numerous instances of homosexual vilification contrary to law. 8. We find that the applicant does pose a real and appreciable risk to the psychological safety of gay and lesbian children who may encounter the applicant's homophobic views in the context of child-related employment, taking into account: 1. the evidence establishing that a disproportionate number of gay and lesbian young people suffer poorer mental health as a direct result of experiencing stigma and abuse on the basis of their homosexuality; 2. the applicant's expressed intention to continue to make his homophobic comments; 3. his expressed desire to teach Bible studies to children, if he is given a clearance. 1. We regard the applicant's ongoing conduct as very serious, and have therefore given a substantial amount of weight to this in our assessment of his risk. Indecent exposure conviction 1. The facts which resulted in the applicant being convicted of indecent exposure, are that the applicant was seen walking within the confines of a pedestrian crossing in Kings Cross shortly after midnight on a Saturday evening. He was not wearing any trousers, and exposed his person. When arrested, the applicant said "I did it because I was drunk". At the time, he was described as being "moderately affected by liquor". 2. The Magistrate hearing the matter accepted the applicant's statement that his conduct was the result of a bet and was attributable to him being drunk at the time. He was convicted, and fined $100.00. The applicant's arguments 1. The applicant's response to the Guardian about his conviction is consistent with his explanation to the Magistrate that he had been dared to run around the street with his trousers off, and that he was drunk at the time. The applicant acknowledged that, at the time, he was "young, drunk and stupid". He has argued that any concerns about his use of alcohol were unfounded, and that he has not drunk alcohol since 1981. Tribunal's analysis and findings 1. The offence occurred almost 47 years ago when the applicant was a Naval Officer on the Aircraft Carrier HMAS Melbourne. The fine of $100.00 depicted the relatively low gravity of the offence. 2. There are no other reported charges or offences of this nature in the applicant's criminal history, which suggests it is highly unlikely that the conduct will be repeated. 3. Considered in isolation, the weight to be given to this conviction is negligible. When considered in combination with, or cumulatively with, other matters, the weight to be afforded to conduct of a sexual nature is slightly higher, as noted below in relation to an allegation against the applicant in connection with his work as a taxi driver. Allegation of inappropriate behaviour as taxi driver (October 2010) 1. A report from a member of the general public, made to Police on 1 October 2010, alleged that the applicant approached staff at a sports club at around 9.30pm, and asked if they had any intoxicated females who needed a taxi. The report noted that a number of persons heard the applicant talking. It was alleged that the applicant stated he would take the females home for free and that, if they were with a male, he would be happy if security staff held them (i.e. any males) at the venue, and the applicant would take the females home by themselves. One member of the public contacted Police and said they did not believe the applicant was being kind, but was "creepy", and might attempt to take advantage of intoxicated females. The applicant's arguments 1. The applicant did not substantively address the allegation by way of evidence or submissions. Tribunal's analysis and finding 1. The applicant's alleged behaviour is highly inappropriate. 2. The source of the allegation has not been disclosed in the Police report, to protect the privacy of the person who notified Police of the alleged incident. We note there is no other material before this Tribunal corroborating the allegation. 3. However, when assessed in combination with the indecent exposure conviction, we are left with some concern that the applicant engages in conversation or behaviour that involves sexual inuendo. We have given this matter a small amount of weight in the overall assessment of his risk. Allegation of blogging about sex with underage girl (March 2013) 1. In response to a request for information relevant to the assessment of the applicant's risk to the safety of children, the NSW Police provided information concerning an alleged blog post about the applicant having sex with a girl who was a taxi passenger. 2. An archived copy of a blog in the name of the applicant using the "Blogspot" URL, contained the following statement: "I had SEX with an UNDERAGE aboriginal Girl, and my Wife knows about it. Her name is [prohibited from disclosure]. She was owing me money (taxi fare), and that's how she had to pay me back! I'm not driving taxi's (sic) any longer, but still meet her sometimes." 1. NSW Police stated that the blog post "can be interpreted as the writings of [the applicant] made around 27 March 2013 and referring to himself". However, the NSW Police could not verify that the archive copy of the Blogspot post is an accurate copy of the blog, or that the post was made by the applicant. 2. The NSW Police advised that the source for the report had not previously provided information to Police and the reliability was therefore unknown. However, the Police stated they believed the source of the report was unrelated to the acrimonious disputes that arose in later years between the applicant and GB. The applicant's arguments 1. In response to the Guardian's request for information about the alleged blog, the applicant asserted that he is an easy target for the group of males who seek to attack him as part of a relentless campaign, and that they were responsible for the blog. His letter dated 18 May 2023 acknowledged the existence of a girl whom he alleged had attempted to extort money from him under threat of accusing him of making sexual advances upon her. 2. He asserted that the blog was nonsense and had been contrived by a homosexual activist and his associates to frame him. He stated that he was disgusted and offended by the allegation against him. The applicant stated: "[name] was an aboriginal street girl, a prostitute and heroin addict. She had been in and out of juvenile correctional centres in her past. She tried to extort money from me by saying that if I did not give her the money, she would accuse me of some kind of sexual advance or something It was extortion. She then, I understand, she (sic) told lies about me…." 1. In his letter, the applicant further commented on the age of the girl who was the subject of the alleged blog: "It was not about a child. The person [name] I believe would have been 17 or 18 years old. Exposure to troubled and criminal people like her is an occupational hazard of taxi driving. This trouble with this girl called [name] happened when I was driving taxis at Port Kemble (sic). The other taxi drivers knew of her but she seemed to target me for extortion of money". 1. In rejecting any suggestion that he had posted the blog in 2013, the applicant also challenged the proposition that he would make such a comment some 7 to 9 years after the time that he was working as a taxi driver in an area frequented by the girl referred to in the blog. Tribunal's analysis and finding 1. The possibility that the applicant may have sexually assaulted a female child is clearly at the higher end of seriousness. 2. The possibility that the perpetrator of such an offence would then admit to the crime in an online blog is, however, implausible. As suggested by the applicant in his response to the Guardian, the timing of the alleged creation of the blog, several years after the alleged incident, also defies explanation. 3. However, the applicant's contention that the blog was created by his serial opponents is not supported by any evidence. We therefore disregard the submission that the blog demonstrates the applicant was the victim of systemic and coordinated complaint processes by the serial complainants. 4. The respondent's submission that, in the absence of explaining how anyone else knew about the relationship between himself and the named girl, it is more likely that the applicant did post the blog, is however not supported by evidence. 5. Turning to the substance of the blog and the applicant's response to the Guardian, it is not clear whether his use of the word "disinformation" is a reference to the act of creating the blog or the alleged act of having sexual relations with an underage girl, or both. Whilst we find the applicant's response to be somewhat obtuse, in light of his expressed disgust that such an allegation would be made about him, we accept that his description of the matter as being "disinformation" is a rejection of the allegation that he engaged in sexual activity with the named girl. 6. In the absence of credible evidence that the applicant created the blog, or that he engaged in the conduct alleged in the blog, and having regard to the inherent improbability that he would create a blog about such highly inappropriate conduct, leads us to conclude that the allegation has no basis. Accordingly, we have not given any weight to the allegation in assessing his risk. 7. However, the applicant's assertion that a 17 year old is not a child, is a separate matter that does cause concern because he appears to not understand the distinction between a young person who is under the age of 18, and a person who has reached that age. His oral evidence on this was also not convincing. He appears to consider a 17 year old to be an adult since they are approaching the age of 18. He does not appear to recognise the vulnerability of a young person under the age of 18. This leads us to conclude that he may not act protectively towards young people who have not yet turned 18. 8. We accept the respondent's submission that the applicant's response to the Guardian demonstrates a lack of understanding of the regulatory scheme created by the Act and casts doubt on his ability to comply with the scheme. This adds to the risk that he poses to the safety of children. 9. We have given this concern a moderate amount of weight against the applicant in assessing whether he poses a risk to the safety of children. Complaints by taxi passengers resulting in loss of licence (2014) 1. On 24 September 2014, the Tribunal affirmed the decision of RMS to refuse the applicant a bus driver authority and to cancel his taxi driver authority. 2. Between 2005 and 2012, a number of complaints were received by the RMS about the applicant's conduct as a taxi driver. Of the seventeen complaints received, six asserted that the applicant had engaged in "improper behaviour" or "inappropriate and offensive behaviour". Another four of the complaints related to driving in an unsafe manner, and three complaints asserted that he failed to provide reasonable assistance to the customer. 3. The Tribunal found that the applicant did not substantially contradict the fact of a number of complaints from passengers about his conduct as a taxi driver. However, in his letter of 18 May 2023 to the Guardian, he asserted that political activists had orchestrated false anonymous complaints against him to the taxi authority. He asserted that this was a campaign to take away his livelihood as a taxi driver, but provided no objective evidence of this. 4. Before issuing an authority to a person to drive a bus or a taxi, the RMS must be satisfied that the person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. 5. The RMS contended that, to be of good repute and in all respects a fit and proper person to drive a public passenger vehicle, the community must have confidence that a driver would behave appropriately at all times and comply with the rules and regulations governing public passenger transport. In support of its argument, the RMS provided extensive files in its s 58 documents that included matters relating to the applicant's engagement in homosexual vilification contrary to the Anti-Discrimination Act 1977. At [29] the Tribunal noted: "[29] …Although he had been required by the Tribunal to apologise for his behaviour and to desist from publishing homosexuality vilifying material he had continued to do so and had been subject to further complaints against him in the Administrative Decisions Tribunal and, during 2014, in NCAT. At hearing, the RMS relied upon [the applicant's] failure to comply with the decisions of the Tribunal as evidence of his bad repute and also a lack of fitness and propriety. This behaviour demonstrated that he was unable to comply with the directions of authority. Further, his undertakings in relation to his future behaviour could not be relied upon." 1. The Tribunal found that the applicant: 1. had been the subject of findings before the ADT and the NCAT in relation to homosexual vilification contrary to the Anti-Discrimination Act; 2. had given apologies and made undertakings not to repeat the vilifying behaviour - but had in fact repeated the behaviour; 3. had been ordered by the ADT not to repeat vilifying behaviour - but has repeated the behaviour, prompting further findings by the ADT and NCAT. 1. The Tribunal found, at [68], that the applicant's behaviour in continuing to engage in homosexual vilification, even after he had been ordered to desist by the ADT and NCAT, was very serious. The Tribunal considered that his behaviour diminished his reputation in the community since he had repeatedly ignored the law. 2. The Tribunal concluded that the applicant did not take responsibility for his errors and tended to blame others for the difficulties he found himself in, asserting that he had been 'framed'. The applicant's arguments 1. The applicant asserted the complaints against him were part of a constant and endless attack on him by his opponents. Citing some 25 cases against him from 2005 - 2018 in the ADT and the NCAT, and, more specifically, [applicant] v RMS, the applicant asserted the history of complaints against him presents as a systemic mismanagement of Tribunal intervention, with 20 years of continuous clogging of Tribunal hearing lists in a persistent attack on him, subjecting him to what was described as "long term emotional and financial dystopia". 2. Additionally, the applicant argued that, contextually, the taxi driver complaints ought to be read alongside: 1. the diagnosed and surgically treated catastrophic brain damage sustained by him as a 21 year old passenger in a motor vehicle; and 2. the exacerbation of his prevailing brain damage condition by the volume and animosity of contemporaneous complaints against him in discrimination matters from 2005-2012. 1. He contended that the combination of these two factors had a profound destabilising psychological impact upon him, and had the effect of "unhinging" him and causing "forced errors" and social destabilisation in his life, during his work as a taxi driver. 2. The applicant also argued, in his defence, that a period of around 14 years has elapsed since his taxi licence was suspended following complaints against him and that he had expressed contriteness concerning his vilifying behaviour. Tribunal's analysis and finding 1. In our view, the applicant has not demonstrated remorse for his behaviour that resulted in multiple complaints against him. As seen from his letter of 18 May 2023 to the Guardian, he has not taken responsibility for his conduct, believing the complaints against him had been orchestrated by his serial opponents. We extract from his letter the following statements: "I object to your unfounded assumption that I was guilty of "inappropriate behaviour... All the complaints against me to the RMS were coordinated by the ZGeek homosexual activists … All the complaints were deliberate lies. It was a coordinated campaign against me. "Concerned citizens" is not the correct descriptor for these people. It makes them sound like good citizens. They were malevolent activists who targeted me because I was weak and vulnerable. I could be easily manipulated. I was set up to make homosexual vilification case law… The anonymous complainants to RMS were motivated by hate because I was an activist member of Fred Nile's Christian Democrat Party that did not approve of homosexual behaviour and the Gay & Lesbian Mardi Gras." … There was nothing wrong with my behaviour." 1. The significance of this matter is that it demonstrates the applicant failed to take responsibility for his conduct, blamed others as framing him to destroy his working career, and has no insight into his behaviour. 2. It is a matter of concern, that the applicant has described his conduct as being "unhinged" and "destabilised", yet has provided no evidence that he has undergone therapeutic counselling and has provided no evidence that he has since stabilised. 3. We have given a moderate amount of weight to those factors as weighing against the applicant when assessing his risk. Note re alleged "serious assault" complaint (2014) 1. For completeness, we note the allegation of "serious assault", apparently notified against the applicant during the course of his employment as a taxi driver. The applicant denied that he has a criminal record that includes an assault. His affidavit evidence was that he has never been charged for an assault, and there have been no proceedings commenced against him for assault. In our assessment of the applicant's risk to the safety of children, we have not taken this allegation into account. Use of carriageway to menace/harass (2012 and 2017/2018/2019) 1. The applicant's criminal history includes the following charges: 1. a charge of "Use postal/similar service to menace/harass/be offensive" (offence date 4 December 2012), which was withdrawn; 2. a charge of "use carriage service to menace/harass/offend" (offence date 9 January 2017), found proved and dealt with by way of an order under s 19B of the Crimes Act 1914 (Cth); 3. a charge of "use carriage service to menace/harass/offend" (offence date 12 April 2017), which was withdrawn; 4. a charge of "failure to comply with condition of discharge or release" (offence date 22 March 2017), which was dismissed. 1. The charge which was proved and dealt with by way of s 19B Order under the Crimes Act 1914 (Cth), was committed against GB, the complainant in the anti-discrimination matters against the applicant. After being placed on a bond which required the applicant "not to continue any activity with a Commonwealth carriage service which identifies [GB] or names him", the applicant was subject to a Call up - Variation Order by the Local Court for re-tweeting a media article which referred to GB. This resulted in the applicant's s19B Order being varied to expressly prohibit him from posting links on his social media platforms to articles mentioning GB by name. The applicant's arguments 1. The applicant's submissions generally criticised the Guardian, asserting that the charges had been wrongly categorised and concluded. The submissions that we consider to be of relevance include that the offences did not involve a child and that they should be categorised at the lower end of the criminal law punishment spectrum. Additionally, the applicant argued that: 1. the charge dated 2 February 2017 (for an offence on 9 January 2017) resulted in a s 19B without recognizance, a fine of $1,000, and the applicant must not, for 2 years, continue any activity with a Commonwealth carriage service which identified GB or names him; and did not result in a conviction; 2. the charge dated 28 April 2017, for an alleged offence of "use carriage service to menace/harass/offend" on 12 April 2017, was withdrawn; 3. and for an alleged offence of "failure to comply with condition of discharge or release" on 22 March 2017, was dismissed; 4. the judgment did not involve a child, but GB (an adult). Tribunal's analysis and finding 1. The significance of these charges in determining the application before us is two-fold in that we find: 1. it demonstrates the applicant's inability to cease his tendency to engage in repetitive homosexual vilification, which is evidence that he engages in impulsive and compulsive behaviour and is likely to continue to do so; and 2. the applicant's failure to comply with court orders is evidence of his failure to be accountable for his conduct and his lack of respect for the law, and increases the likelihood that he will not comply with the legislative scheme under the Act. 1. We have, accordingly, given these matters a reasonable amount of weight in determining the risk posed by the applicant. History of non-compliance with Tribunal orders 1. In addition to failing to comply with the s 19B Order made by the Local Court as noted above, the applicant has a history of failing to comply with Tribunal orders associated with a substantial number of complaints against him for homosexual vilification contrary to the Anti-Discrimination Act 1977. 2. The applicant (on his own evidence) was ordered by NCAT to pay compensation to GB. It appears that the applicant may not have complied with that order. Various references in the material before us suggest that the ordered compensation has not been paid due to the applicant's bankruptcy. In his own words, the applicant refers to having been "bankrupted due NCAT ordered payments to Mr [GB]." In an attachment to his letter dated 16 October 2019 to the Guardian, the applicant stated: "So far [GB] has been rewarded $55,000 by NCAT for his complaints that he wants me to pay him even though I have been made bankrupt." 3. Having failed to comply with Tribunal orders to refrain from publishing material held (by the Tribunal) to constitute homosexual vilification, the applicant was referred to the Supreme Court of New South Wales for contempt. By his own evidence (biographical notes dated 16 October 2019), the applicant acknowledged he had been referred for contempt for not obeying NCAT orders: "Please note I have been referred by NCAT for contempt of the tribunal for not obeying their orders to pay [GB] $55,000 due to bankruptcy caused by that $55000 debt. This is a result of the political lobbying of the homosexual rights activists." The applicant's arguments 1. In a letter dated 19 August 2019 to the Crown Solicitor, the applicant asserted that he had been referred to the Supreme Court for contempt for political, and not legal, reasons. He asserted that he had been referred for contempt based on manufactured and misleading evidence submitted by GB, and that the applicant's evidence had been ignored. The factual circumstances surrounding the referral were not made clear in the proceedings before us. However, the issue is not whether the applicant considered his evidence had been ignored, but whether he had complied with the resulting Tribunal orders. No evidence was put before us that the applicant had complied with such orders. 2. In written submissions, reference was made to the letter dated 19 April 2023 from NSW Police to the Guardian, in which it is stated: "NSW Police have provided you copies of a series of NSW Police COPS event reports documenting allegations and counter-allegations between [the applicant] and [GB]. The acrimonious atmosphere that has existed between the two men must be taken into account when we assess anonymous allegations we receive against either party." 1. If we have understood the applicant's submissions correctly, the significance of citing the Police letter is that no weight should attach to anonymous allegations made against him (including inferring that no weight should be given to the evidence given against him in the contempt proceedings). Tribunal's analysis and finding 1. The applicant did not substantively address the fundamental complaint concerning his failure to comply with Tribunal orders to refrain from publishing material held to constitute homosexual vilification. 2. The letter from the NSW Police refers to the caution applied when Police receive anonymous allegations against either the applicant or GB. The referral for contempt does not arise from an anonymous allegation. The inference that the NSW Police letter answers the fundamental contempt complaint (if, indeed, that was the purpose of the reference made in the applicant's submission) or that it has application with respect to the Tribunal's referral of the applicant to the Supreme Court of NSW for contempt, has no basis and is not accepted. 3. We find the applicant's failure to pay fines and failure to comply with Tribunal orders demonstrates his lack of respect for the Tribunal and the law. His track record of non-compliance is a matter that increases the likelihood that he would continue to fail to respect the law and abide by it. 4. We have formed the view that the applicant's demonstrated lack of respect to comply with Tribunal orders indicates that he may be unable, or unwilling, to follow lawful directions from authorities. This may, indeed, extend to directions from a supervisor in the context of the applicant undertaking volunteer work. We have placed a reasonable amount of weight on this, in determining the risk that he poses to the safety of children. 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 applicant's indecent exposure conviction was 47 years ago and he has not repeated that conduct. 2. The complaints against the applicant as a taxi driver were made between 2005 and 2012. Although more than 12 years have elapsed, the applicant has not driven taxis since losing his taxi authority in 2014 and therefore the period of time elapsed without further complaints against him in that workplace context cannot be relied upon as being indicative of reformed behaviour. 3. The applicant's homophobic YouTube videos remain publicly available, and therefore his homosexual vilification conduct is current, and is regarded as a serious matter. The age of the person at the time the offences or matters occurred: s 30(1)(c) 1. At all material times with respect to charges, complaints and allegations made against him, the applicant was an adult. 2. With respect to the applicant's homophobic comments, these were uploaded as videos onto his YouTube channel during 2015 and 2016 when he was around 58 and 59 years of age. 3. As to the complaints against him during his employment as a taxi driver, the applicant was around 48 years of age in 2005 and around 55 in 2012. 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. There is no evidence before this Tribunal that a specific child or young person has been harmed by the applicant. However, as already noted, the Act does not require that a person has been harmed, or that evidence is to be adduced that a person has been harmed, in order to apply the test in s 18(2) of the Act. 2. Again, as previously noted, the test is whether an applicant for clearance poses a risk to the safety of children, and not that an applicant has harmed children. 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. As already noted, there is no specific victim in this matter. However, the applicant was significantly older than a lesbian or gay young person at the time that he uploaded his videos. Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f) 1. Not applicable. The person's present age: s 30(1)(g) 1. The applicant is currently 67 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 was discussed above in relation to ss 30(1)(a) and 30(1)(b) of the Act. 2. In a letter dated 8 March 2023, pursuant to s 31 of the Act, the NSW Police advised "There are no records from the NSW Police force 'COPS' database, that did not (sic) result in charges, that refer to [the Applicant] in the context of child abuse or sexual offences". We have assumed that the use of a 'double negative' was inadvertent, and have taken the statement to mean there were no records in the 'COPS' database that resulted in charges against 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. In assessing the likelihood of any repetitive offending conduct, this Tribunal does not attempt to make a psychological evaluation. We simply observe the applicant's repeated offending conduct, if not arrested, to be an indication of his likely future behaviour. 2. By the applicant's own pronouncements, he intends to continue to speak against homosexuality, as evidenced by the following statement on same sex marriage (which we understand was uploaded onto YouTube in 2015): "I will never accept this, never ever will accept it, I will speak against it, and speak against issues on it, all of the time. Philosophically, it is not on.": [Ref Video 2 heard between 1:58 and 2:1 on Video 2 in 2015 on the USB drive tendered in evidence in the s 58 Bundle.] 1. In submissions dated 5 June 2019 to the Local Court in connection with a 'breach of bond' charge against him (relating to his "use of carriage service to menace/harass/offend" offence on 9 January 2017), the applicant explained his lack of impulse control difficulty. He stated that he had uploaded a video clip to his YouTube channel after being triggered by his "uncontrollable anger" and his "lack of impulse control due to medically diagnosed remnants of MVA frontal lobe brain injury". In those submissions, he also stated that his brain injury had badly affected his memory function. 2. In his letter to the Guardian on 16 October 2019, the applicant justified his comments on social media (and we understand his use of the term "social media" to be in the broader sense, not limited to the YouTube Videos) as perhaps "injudicious" but necessary to defend himself. It is evident that he sees himself as a victim, stating: "I am constantly under attack. I have done nothing wrong apart from maybe some injudicious words on social media. I have no option to defend myself. The homosexual rights activists are determined to use me to make case-law and they want to destroy me because of my religious conviction that opposes their agenda." 1. In his letter of 18 May 2023 to the Guardian, the applicant acknowledged that when he first applied for clearance in 2019, he "impulsively" sent out many tweets every day. He suggested that it may have been an "addiction". He also contended that the reference to "impulse control" only applied to his past tweeting habits. He said that he now uses his twitter account in a more restrained manner. 2. The repetitive nature of the applicant's conduct by engaging in homosexual vilification and harassing behaviour increases the risk of it continuing to reoccur. The applicant's entrenched views on homosexuality (as evidenced by the number of actions against him in the ACAT and NCAT), increases the likelihood that the applicant will continue to voice his comments and this adds to the risk. No objective evidence has been put before us that the applicant has managed to bring his impulsiveness under control. 3. In a written submission on behalf of the applicant in these proceedings, it was asserted that his "prevailing brain damage condition", exacerbated by complaints against him in discrimination matters, had "unhinged" and "destabilised" the applicant to the point of distraction during his work as a taxi driver. Another submission on behalf of the applicant stated that his stability had been profoundly impacted by the prolonged provocation upon him. No objective evidence has been put before us that the applicant no longer suffers from being "unhinged" or "destablised", particularly since he is still engaged in defending complaints against him for homosexual vilification. 4. In our view, as previously noted, there is no prospect that the applicant will desist from making homophobic statements online. The risk that he poses to the psychological and emotional safety of gay and lesbian children remains unmitigated. Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1) 1. The Tribunal understands that 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 for clearance, the applicant submitted a written reference dated 2 December 2022 from the pastor in his church. The reference stated that the applicant had been a volunteer in the church since 2000, and that the pastor had never heard of any trouble involving the applicant with kids. He described the applicant as being a good man, with a good record, and a regular church goer. 2. In a subsequent telephone conversation with an officer of the Children's Guardian on 19 January 2023, the pastor: 1. confirmed that he had known the applicant for more than 40 years; 2. described the applicant as a gentle man, with good intentions, and is very friendly and helpful at the church; 3. confirmed that he was unaware of any concerns about the applicant relating to children, and that there had not been any complaints or concerns since the applicant's involvement with the ministry for the past 30 years; 4. said that he didn't believe the applicant ever harmed children, or ever will, as he has shown himself to be patient and understanding towards them when helping out with activities in a group setting; 5. said he has never observed any behavioural concerns in the applicant, there were no complaints from anyone at church, the applicant was well known by the community and is respectful and accepted by everyone; 6. confirmed that the applicant has a disability and, as a result of a brain injury, has difficulty with his memory and requires constant reminders to complete tasks; 7. said that the applicant runs errands for the church but is not involved in any programs or working with children. 1. The pastor also said that he would not allow the applicant to work with children "given his disability and inability to speak coherently". He said that in the past the children have made fun of the applicant which upset him. The Tribunal's assessment 1. We consider the pastor's qualification on the applicant's ability to work with children to be a protective statement towards the applicant, rather than expressing a caution or concern that he may not behave appropriately towards children. 2. The reference makes no comment on any of the applicant's criminal history or his online profile and comments on homosexuality. Indeed, the pastor confirmed that he had no knowledge of the information held by the Guardian. On balance, this personal reference is of limited value in assessing the applicant's risk and accordingly we have given it only a very small amount of weight in favour of the applicant. Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1) 1. 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) 1. 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. 2. 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. 3. 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 1. 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 1. 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. 2. 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 1. 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 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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 1. 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. 2. 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. 3. 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 1. 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. 2. 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. 3. 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. 4. 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. 5. This demonstrated lack of understanding of the law leads us to conclude that we cannot be confident he will comply with the law. 6. 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 1. 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. 2. 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" 1. 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. 2. 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". 3. 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 1. 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. 2. 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. 3. 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" 1. 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. 2. This is a serious allegation made against the respondent. 3. 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. 4. 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." 1. 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. 2. 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. 3. Further, the applicant's affidavit filed in these proceedings annexed a copy of the report. 4. 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 1. 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. 2. 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. 3. 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, …" 1. 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 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: 26 November 2024