Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CNR v Children's Guardian [2016] NSWCATAD 196 Hearing dates: 8 August 2016 Date of orders: 31 August 2016 Decision date: 31 August 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: J Anderson, Senior Member B Field, General Member Decision: The applicant's application for an enabling order is dismissed. Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person – whether applicant has discharged onus to rebut statutory presumption that he poses a risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Cases Cited: Commission for Children and Young People v [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 M v M [1988] HCA 68; 166 CLR 69 Category: Principal judgment Parties: CNR (Applicant) NSW Office of the Children's Guardian (Respondent) Representation: Counsel P Guterres (Respondent) Solicitors: CNR (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1610284 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcast without the leave of the Tribunal. REASONS FOR DECISION Background 1. On 17 March 2016, the Applicant applied to the Office of the Children's Guardian (the Respondent) for a Working with Children Check clearance. 2. On 11 April 2016, the Respondent notified the Applicant that his criminal history disclosed a disqualifying offence, namely, a conviction for sexual assault (category 4) contrary to section 61E of the Crimes Act 1900 (NSW), and as a disqualified person he must not be granted a working with children check clearance. 3. On 2 May 2016, the Applicant made this application to the Tribunal for an order that he is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (an "enabling order"). The working with children legislative scheme 1. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act). 2. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act). 3. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check clearance. 4. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act. 5. Section 13 of the Act provides that a person may apply to the Children's Guardian for a working with children check clearance. 6. Section 18(1) provides that the Children's Guardian must refuse an application for a clearance where the Applicant is a 'disqualified person'. A person is a disqualified person by reason of having been 'convicted' of an offence falling within Schedule 2 of the Act. 7. In this matter, the Applicant was convicted of the offence of indecent assault of a person under the age of 16, contrary to section 61E of the Crimes Act 1900. It is because of his conviction for this offence (a Schedule 2 offence), that the applicant is rendered a "disqualified person". Role of the Tribunal 1. Section 28 of the Act makes provision for review, by the Tribunal, of a decision that a person is a disqualified person, by declaring that he or she is not to be treated as a disqualified person. Section 28 provides: 28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. 1. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. The section provides that: 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 total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. 1. In addition, amendments to the Act which came into effect on 2 November 2015 inserted section 30(1A) as follows: 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. Procedure of Tribunal 1. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36. 2. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67. 3. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436. 4. At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so. 5. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "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." Burden of proof 1. As the Applicant is a disqualified person seeking an enabling order pursuant to section 28 of the Act, there is a presumption that the Applicant poses a risk to the safety of children. The issue to be decided 1. The issue for determination by the Tribunal is whether the applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children, and accordingly, whether he should (or should not) be granted an enabling order. Risk to the safety of children 1. The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "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. These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE), at [26]. 2. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an Applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area." 3. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8. 4. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal. Evidence before the Tribunal 1. The Respondent tendered into evidence the documents gathered by the Respondent in relation to the Applicant's application, including responses from employers and community organisations, and documents provided by government departments and agencies, including the NSW Police, the courts, and the Department of Education and Training. 2. The Applicant relied on his application, a written submission dated 25 July 2016, and a report of Dr Rebecca Smith, Forensic Psychologist, dated 25 June 2016. The Applicant and Dr Smith gave oral evidence at the hearing and were cross-examined by Counsel for the Respondent. 3. The evidence is now considered under each of the subheadings of section 30(1) of the Act, each of which the Tribunal must consider in its determination of the application 4. (a) the seriousness of the offences with respect to which the person is a disqualified person 5. The matter that caused the refusal of the Applicant's application for a clearance was his conviction on 8 May 1989 for the indecent assault of a child under 16 years under his authority, which occurred between September and October 1987. First offence 1. The victim of the Applicant's first offence was a 14 year old girl. At the relevant time, the victim (Miss C) was a junior basketball referee and was refereeing at a basketball stadium attended by the Applicant who was a senior referee. It was also attended by the victim's mother who was working in the canteen at the stadium. 2. The victim was looking for her mother at the event when she was approached by the Applicant, whom she had met previously. The Applicant asked the victim to accompany him outside while he had a cigarette. While sitting at a table together discussing basketball matters, the Applicant put his arm around the victim. He then asked the victim to accompany him to watch tennis being played nearby. The victim said "no" but the Applicant grabbed her hand, pulled her up and said "come on", before walking together. The Applicant proceeded to stand behind the victim with his hands on her shoulders. The Applicant's right arm came over the victim's shoulder and he started rubbing around the victim's breast on the outside of her clothing. The victim threw the Applicant's arm back and said "don't". Despite the victim's instructions not to do so, the Applicant on two more occasions started rubbing the victim's breast. The Applicant also lifted the victim's chin up and kissed her on the forehead. Again, the victim said "don't". The victim commenced walking away from the Applicant. The Applicant caught up with her, placed his hands on her shoulders and started reaching down the front of her t-shirt. She intercepted his hand and told him to leave her alone. The Applicant asked the victim her age, and the victim told him she was 14. 3. That evening the victim told her mother what had occurred. The matter was subsequently reported to police. 4. The Applicant participated in a police record of interview. Although the transcript of that interview was not available, a transcript of the interviewing officers' evidence during the committal proceedings was in evidence. The Applicant, while denying the offence occurred as alleged, admitted being in the presence of the victim on the day in question. He could not recall if he had touched her breast or put his hand down her t-shirt. He also indicated that he didn't mean to or wasn't aware that he did, but conceded he may have touched the victim on her breast. The Applicant also asked the interviewing officer/s for their opinion about whether he needed psychiatric help. 5. The Applicant pleaded not guilty to the offence and the matter proceeded to hearing in the Local Court, during which he was legally represented. During his trial, the Applicant gave evidence in which he said he may have placed his hands on the victim's shoulders, but denied touching her breasts or putting his hand down her shirt. 6. The Magistrate found the offence proved. In sentencing the Applicant, the Magistrate described the offence as: …a serious one insofar as the position you hold and the girl that I've held you assaulted and the manner in which she was assaulted too. It was her evidence that I've accepted now that you detained her there and you continually assaulted her by touching her on the breast and followed that up with perhaps even what might be regarded as a more serious [assault]. 1. A conviction was recorded and the Applicant was ordered to enter into a recognizance to be of good behaviour for a period of 18 months. Second offence 1. A second offence of the same type occurred on 12 June 1998. The Applicant's criminal record indicates that second offence was "adjourned generally". There was no brief of evidence, transcript or bench papers of the proceedings in relation to the second offence. However, there was evidence before the Tribunal that it was determined after the Applicant's sentence for his first offence. 2. A Police Incident and Arrest report indicates that the victim (Miss K), a 14 year old girl, alleged that on 12 June 1988 at a basketball stadium, the Applicant placed his arm around her shoulders and touched her on the breast on the outside of her clothing. 3. The Applicant pleaded not guilty to the second offence. The offence was proved and the Applicant was sentenced. Due to the lack of court records and an omission in the Applicant's criminal record, the actual sentence imposed on the Applicant is unclear. However, it appears that the Applicant was ordered to enter into a recognizance to be of good behaviour for a period of 18 months, supervised by the Probation and Parole Service and to attend to psychiatric treatment as required by that Service. 4. Section 61E of the Crimes Act 1900 has since been repealed. However at the relevant time, it provided for an offence of indecent assault of a child under 16 years and under the authority of the person. The offence attracted a maximum penalty of 6 years' imprisonment. 5. Although the Applicant's conduct was at the lower range of contact sexual offending, it is nevertheless serious; involving the indecent assault of children in respect of whom the applicant was in a position of authority. Furthermore, the Applicant continued his indecent conduct in the face of the victim's clear protests and instructions to stop. His actions no doubt caused considerable distress and concern to the victims and their families. (b)The period of time since the offence occurred and the conduct of the Applicant since that time 1. The offences were committed approximately 29 years ago. 2. The Applicant has no other criminal convictions other than the disqualifying offences. However, in 1998 while employed by the Department of Education and Training as a driver for children with special needs, the Applicant was the subject of a Departmental investigation. In particular, a complaint was made by a 13 year old girl who was both deaf and mute and who was regularly transported by the Applicant to and from her school. The girl alleged that while seated in the front seat of the vehicle driven by the Applicant, the Applicant on one occasion touched her breast, and on a second occasion attempted to put his hand in her shirt. 3. Investigations were commenced by the Department and statements were taken by the girl and another child passenger who was in the vehicle at the relevant time. It appears that the specific allegations were not subsequently put to the Applicant on the basis that the Department, having become aware during the course of the investigation of the Applicant's convictions in 1989, did not finalise the investigation. Rather, the disqualifying convictions gave rise to the termination of the Applicant's employment, and the Applicant was subsequently placed on the Department's Not To Be Employed (NTBE) list. 4. The Tribunal is cognizant that, unlike the disqualifying offences, the Applicant was never charged in relation to the 1998 allegation. Indeed, the allegation appears never to have been put to the Applicant and the first time he became aware of it was during the Tribunal proceedings. However, the material produced by the Respondent alleges conduct and circumstances strikingly similar to those present in the disqualifying offending, such as to lend the evidence both cogency and weight. In particular, the victims were female and of similar ages. The Applicant is alleged to have touched, or attempted to touch, the girls' breasts. The Applicant's conduct occurred while in a position of authority and appeared to have been opportunistic in that no other adults were immediately present to detect the offending and/or intervene. Therefore, the Tribunal, although not required to make a positive finding that the assault in 1998 occurred as alleged, was sufficiently satisfied that the material was rationally probative to the issue to be determined by the Tribunal, namely, the question of the Applicant's risk to the safety of children. 5. At the time of his arrest in 1987, the Applicant was a senior basketball referee. He was employed for 7-8 years as a driver of special needs children for the Department of Education and Training. He also worked in pool care and garbage collection for local government for a number of years. He sustained a workplace injury and was in receipt of the Disability Support Pension, and later, the Age Pension. He lives with his wife, to whom he has been married for 40 years. They have a son and daughter, and they are closely involved in the care of their 8 year old grandson. 6. The Applicant has been involved for many years in a local musical group, of which his family members are also involved. He held a senior position in the group until his refusal of a working with children check clearance. He has stepped down from his position pending the outcome of the Tribunal proceedings. (c)The age of the Applicant at the time the offence occurred 1. At the time of commission of the disqualifying offence, the Applicant was aged 37 and 38 years. (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 1. The victims of each offence were aged 14 years and were both junior basketball referees. The Applicant, as a senior referee, was in a position of trust and authority. At least in relation to the first offence, the offending occurred in circumstances where the Applicant encouraged the victim to accompany him to a location where it would be difficult for members of the public to observe his offending. In this sense, the victim was particularly vulnerable. (e) the difference in age between the victim and the Applicant and the relationship (if any) between the victim and the Applicant 1. There were age differences of 23 and 24 years respectively. (f) Whether the Applicant knew, or could reasonably have known, that the victim was a child 1. The Applicant was found guilty of offending against a child on two occasions. The Tribunal is satisfied that the Applicant knew that the victims were children. (g) the Applicant's present age 1. At the time of the Tribunal hearing, the Applicant was 66 years of age. (h) the seriousness of the Applicant's total criminal record and the conduct of the Applicant since the offences occurred 1. Aside from the disqualifying offences, the Applicant has no other criminal convictions. 2. Further details of the Applicant's conduct since his convictions are detailed in earlier paragraphs. (i) the likelihood of any repetition by the Applicant of the offences or conduct and the impact on children of any such repetition 1. For the purposes of the Tribunal proceedings, the Applicant was assessed by Dr Rebecca Smith, Forensic Psychologist, on 23 June 2016. Dr Smith prepared a risk assessment report dated 25 June 2016 and was cross examined by Counsel for the Respondent. 2. In her written report, Dr Smith details the various tests she utilised in her assessment of the Applicant, including the Static-99R (an instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders), and the STABLE-2007 and ACUTE-2007 (instruments designed to assess and track changes in risk status over time by assessing changeable dynamic risk factors). In her written report, Dr Smith stated that the results of the testing indicated the Applicant fell within the low risk and low priority categories of sexual and general re-offending. Dr Smith in her overall assessment, placed the Applicant in the low risk category for sexual recidivism, and noted his protective factors as including his stable supports and social involvement, coping skills, some level of victim empathy, and the measures the Applicant has taken to reduce the chance of him being alone with children. Dr Smith also took into account the Applicant's medical circumstances which means he is no longer sexually active, and his lack of prior or post history of sexual offending. 3. Yet, during cross examination it became evident that the Applicant, during the clinical review, had not informed Dr Smith of his 7-8 year period of employment as a driver transporting special needs children to/from school. Nor did he inform Dr Smith, subsequent to the clinical review, of the allegations in 1998 that he had inappropriately touched a child in the course of that employment. 4. In her evidence, Dr Smith told the Tribunal that during her clinical review of the Applicant, she specifically asked the Applicant about his employment history. She indicated that this inquiry was important, particularly in order to ascertain if the Applicant had any prior involvement working with children. Dr Smith said that the evidence of the Applicant's employment as a driver transporting children was very significant, and that it was "possible or even likely" that the Applicant deliberately left out that information. Dr Smith also said that the information was important as it shows the Applicant was seeking employment which involved access to children. Dr Smith said her conclusion that the Applicant had an absence of offending for a 27-year period decreased the Applicant's risk significantly. However, Dr Smith said that if there were further offending following the disqualifying offending this would have the opposite effect (and thus increase the Applicant's risk). 5. Dr Smith also said that the vulnerability of the victim is relevant to the assessment of risk, and the fact that the victim in the 1998 allegation was a deaf mute would "undoubtedly" increase the Applicant's risk. Dr Smith indicated that the new information may have the effect of increasing the Applicant's risk from the low range to somewhere in the low to moderate category. 6. The fact that the Applicant failed to disclose his full employment history to Dr Smith is, in the Tribunal's view, concerning. Given it was not short-term employment, but rather continued over a period of approximately 8 years and involved both permanent and casual work, the Tribunal finds that the Applicant's failure to advise Dr Smith was not a mere oversight, but a deliberate act of the Applicant to withhold information that may adversely affect his risk assessment. 7. In addition, the Tribunal notes that the Applicant did not inform Dr Smith of the allegations made against him in 1998 while employed as a driver. The documents produced by the Respondent suggest that the Applicant was not notified of the allegations at the relevant time, as his employment was ultimately terminated on another basis. However, documents filed by the Respondent on 19 July 2016 and 4 August 2016 provide considerable detail about the allegations in 1998. Whilst those documents were not made available to the Applicant until after his review by Dr Smith on 23 June 2016, the Tribunal notes that the Applicant did not take subsequent steps to provide those further documents to Dr Smith or seek to discuss with her the allegations contained therein. 8. That the Applicant failed to disclose all of his employment to Dr Smith, and his failure to take steps once apprised of the 1998 allegations is relevant in the context of section 27(4) of the Act, which imposes a positive obligation on the Applicant to fully disclose any matters relevant to the application. (j) any information given by the Applicant in, or in relation to, the application 1. Notwithstanding his convictions for both disqualifying offences, the Applicant maintains his innocence. In his evidence before the Tribunal the Applicant denies he indecently assaulted Miss C and Miss K. In relation to the offence involving Miss C, the Applicant said he admitted that the touching of her breast may have happened "but not up and down her clothes". The Applicant said Miss C may have had a "crush" on him, and that during the period between being charged and going to court, Miss C was "hanging around" him. He also said that as a parent he could not understand why, if Miss C had reported the incident to her mother that day, it was not until 8 months later that the police were notified. 2. In relation to the second offence, the Applicant in evidence said that he had been asked to referee a game of basketball and was having a conversation with the victim (Miss K), during which the victim said "My mum's going to kill me". The Applicant said he told the victim "C'mon, your mum won't be that tough". The Applicant said the victim went off to referee (a game) and he went off to a food tent. The Applicant denied indecently assaulting the victim. He also said that it wasn't until after his contact with Miss K that Miss C's allegation was reported to police. The Applicant told the Tribunal that he feels he "got set up a little bit", and suggested that Miss C may have been jealous as a result of him putting his arm around Miss K. 3. As part of his sentence for the second offence, the Applicant was required to submit to psychiatric intervention as required by the Probation Service. He asserts that he was told he did not need any further psychiatric review after the first appointment, and he has not had any further psychological or psychiatric review since that time. 4. The Tribunal notes that the Applicant was not provided with an opportunity, at the time of the Departmental investigation, to respond to the 1998 allegation that he inappropriately touched a deaf mute girl. In his evidence to the Tribunal, the Applicant denied that he inappropriately touched the girl as alleged. The Applicant recalled transporting the girl, Miss M, to/from school. He said she was seated in in the front passenger seat of the vehicle on more than one occasion. He also recalled that the girl, in the months beforehand, had been bullying another child in the back of the vehicle, and that he had on an occasion stopped the bus and waved a finger at her. However, the Applicant could not recall putting his hand on the girl. 5. The Applicant denies deliberately omitting to inform Dr Smith of his employment as a driver of children, which he says he considered to be "just a driving job" rather than child-related work. He also said he was genuinely concerned that he did something to upset the victims of his disqualifying offending. 6. The Applicant seeks a working with children check clearance in order to re-establish his participation in the musical group with which he has been involved, including at a management level, for many years. He said that in his 24 years of involvement there has never been a problem. He submits that his opportunity for direct contact with children is limited, and he does not put himself in situations where he could be alone with a child. However, he conceded that the musical group currently has three children; a 14-15 year old boy, an 11-12 year old girl and his 8 year old grandson, and that the group's new premises will be located on the grounds of a school. He also conceded that an object of the group is to introduce and promote the involvement of young people. (k) any other matters that the Children's Guardian considers necessary. 1. The Respondent opposes the application. Counsel for the Respondent submits that whilst the Applicant's conduct is at the less serious range of sexual offending, the seriousness arises from the multiple victims, the period of time over which the matters occurred, and the abuse of authority each matter involved. Counsel for the Respondent submits that there is no evidence to suggest that a passage of time reduces the Applicant's risk, as the complaint of the victim in the third matter involves almost identical circumstances as those that arose in his disqualifying offending. Counsel for the Respondent also submits that the Applicant's failure to disclose his employment history, his compete denial of the offences and lack of remorse and empathy for the victims means that the Tribunal could not be satisfied that the Applicant has proved that he is not a risk to the safety of children. (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 affect ed person was engaged in any child-r elated work, and (b) it is in the public interest to make the order. 1. In light of the facts and circumstances of the Applicant's disqualifying offending, and his lack of insight and remorse, the Tribunal is not satisfied 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 child-related work. 2. For the same reasons, the Tribunal is not satisfied that it is in the public interest to make an order enabling the Applicant to be granted a working with children check clearance. Conclusion 1. The issue for determination is whether, on the material before it, the Tribunal can be satisfied that the Applicant has discharged his onus to prove that he is not a risk to the safety of children. In this regard, the Tribunal is cognizant of the fact that the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application. 2. In relation to his disqualifying offending, the Applicant continues to maintain his innocence despite being found guilty on two occasions by the Local Court. In this regard, the Tribunal finds the Applicant displays a noticeable lack of insight into his conduct, which he continues to deny and minimise. The Applicant was not an impressive witness and his claims that his 14 year old victims were motivated by jealously and/or conspired to bring (false) charges against him not only wholly lack credibility, but reflect on the Applicant's inability to accept responsibility for his actions and his tendency to apportion blame to others. 3. In addition, the Applicant's lack of disclosure has rendered the psychological evidence (upon which he sought to rely) to be of limited weight. Indeed, Dr Smith's indication that the Applicant may now fall into the low-moderate range of risk means that the Applicant cannot rely on the expert evidence to prove that he does not pose 'a real and appreciable' risk to the safety of children. 4. The matters reflecting adversely on the applicant's credit and the matters of inadequate disclosure together persuade the Tribunal that it could not have confidence that the applicant would have disclosed anything adverse or anything else that he was obliged to disclose under the Act unless it would support his application. 5. In addition, there is no evidence that the applicant has voluntarily sought any treatment or counselling since his convictions, and it is apparent he does not see the need to do so. There is therefore little, if any, evidence upon which it can be said that the applicant has developed any insight into his offending conduct, its effect on children, and the measures he needs to adopt to ensure it does not re-occur. 6. The Tribunal accepts that if the Applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. Whilst the Applicant has indicated he does not propose to work with children specifically, his motivation for seeking a clearance is to enable him to re-establish his participation in a musical group, the membership of which includes children. 7. The Tribunal is cognisant of the fact that the safety, welfare and wellbeing of children and in particular, protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. Having regard to this principle, the Tribunal is unable to make a finding that the applicant has any real insight into his offending. Similarly and relatedly, the Tribunal is unable to find that that the applicant has taken sufficient steps to mitigate the risk of further offending. Accordingly, on all of the evidence before it, the Tribunal cannot be satisfied that the applicant has discharged his onus to prove that he is not a risk to children. Accordingly, his application for an enabling order is refused. ORDERS 1. Accordingly, the Orders of the Tribunal are as follows: 1. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) is refused and dismissed. 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: 31 August 2016