Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CDA v Children's Guardian [2017] NSWCATAD 37 Hearing dates: 15 June 2016 & 4 August 2016 Date of orders: 23 January 2017 Decision date: 23 January 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: L Organ, Senior Member R Royer, General Member Decision: The decision of the Children's Guardian made 14 July 2015 to refuse the applicant's Working with Children Check clearance is affirmed. Catchwords: ADMINISTRATIVE REVIEW – child protection – review of decision of the respondent to refuse the applicant's application for a working with children check clearance –workplace finding of misconduct- whether the applicant posed a real and appreciable risk to children. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Child Protection (Working with Children) Act 2012(NSW) Evidence Act 1995 (NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Commission for Children and Young People v V [2002] NSWSC 949 Commission for Children and Young People v FZ [2011] NSWCATAD 69 Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303 Holbrook and Australian Postal Commission (1983) 5 ALN N46 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; BJB No. 2 M v M [1988] HCA 68 YG and GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: CDA (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 1510496 Publication restriction: Pursuant to s.64 (1) (a) of the Civil and Administrative Tribunal Act 2013, disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited.Note: 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 Background 1. CDA (the applicant), seeks review of the decision of the respondent (the Children's Guardian), to refuse his application for a Working with Children Check (WWCC) clearance, under the Child Protection (Working with Children) Act 2012 ("the Act"). 2. The applicant is a 47 year old man. The applicant requires a WWCC clearance for future employment purposes. 3. On 8 September 2013, the applicant applied to the Office of the Children's Guardian (the respondent) for a WWCC clearance. 4. The respondent conducted a risk assessment of the applicant and, on 14 July 2015, determined to refuse the application. 5. On 18 August 2015, the applicant lodged an application for review of the respondent's decision. The Statutory Scheme The Child Protection (Working with Children) Act 1. The objects of the Act are as follows: 3 Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have Working with Children Check clearances. 1. Section 4 of the Act provides that the paramount consideration in the operation of the Act is the "safety, welfare and well-being of children and, in particular, protecting them from child abuse." 2. The Act prohibits a person from engaging in "child-related work" unless (a) the person holds the relevant WWCC clearance, or (b) there is a current application, by the person, to the respondent for the relevant WWCC clearance: s 8(1). Contravention of this prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 3. Section 18 sets out how the respondent is to determine an application for a clearance. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Act, or where that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a "disqualified person" and the respondent must refuse that person's application for a clearance. In this case, the applicant is not a "disqualified person" and the subsection does not apply to him. 4. Subsections 18(2) and (3) apply to all other applications. These subsections provide: 18 Determination of applications for clearances (1) … (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3. 1. A person is subject to an "assessment requirement" if any of the matters specified in Schedule 1 of the Act apply. This includes circumstances where the person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children. 2. According to the respondent's records, the matter which triggered a risk assessment of the applicant was a workplace misconduct notification on 24 January 2014 from Lifestyle Solutions. This notification was in relation to allegations of sexual misconduct against the applicant which occurred in 2013 and 2014 during the course of the applicant's employment as a Support Worker. These allegations were found to be sustained following a workplace investigation and the applicant's employment was terminated. 3. In making an assessment, the respondent may consider the following factors set out in section 15(4) of the Act: 1. the seriousness of any matters that caused the assessment in relation to the person, 2. the period of time since those matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the matters occurred, 4. 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, 5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. whether the person knew, or could reasonably have known, that the victim was a child, 7. the person's present age, 8. the seriousness of the person's total criminal record and the conduct of the person since the matters occurred, 9. 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, 10. any information given in, or in relation to, the application, 11. any other matters that the Children's Guardian considers necessary. Role of the Tribunal 1. Section 27 of the Act makes provision for administrative review by the Tribunal of a number of decisions of the respondent, including a decision to refuse a WWCC clearance. That section relevantly provides: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a Working with Children Check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) … (3) … (4) An applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section. 1. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the respondent: Administrative Decisions Review Act 1997, s 63. 2. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: YG and GG v Minister for Community Services [2002] NSWCA 247, at [25]. 3. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]; and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130] 4. 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. 5. 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, s 38 and s 67. 6. 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. 7. In BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE) at [29], 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 set out 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. 8. 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." Administrative Decisions Review Act 1997 1. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders: 1. to affirm the decision of the respondent, or 2. to vary the decision, or 3. to set aside the decision and make a decision in substitution for the decision it set aside, or 4. to set aside the decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal. 1. At any stage of proceedings, the Tribunal may remit the decision to the respondent for reconsideration: Administrative Decisions Review Act 1997, s 65. Child Protection (Working with Children) Act 2012 1. Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the respondent may have regard when conducting its risk assessment) : 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. The meaning of the word "risk" was considered by his Honour Young CJ in Eq in Commission for Children and Young People v 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, 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." Burden of proof 1. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32]. 2. Although the applicant has no legal burden he does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of, and under, the mandated considerations contained in section 30 of the Act. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46. 3. Where a matter requires proof it should be proved to the civil standard, on the balance of probabilities: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; BJB No. 2 at [32]. 4. However, the ultimate issue is not whether a particular allegation has been proved or not proved. This is subservient and ancillary to the ultimate issue: whether in all the circumstances the applicant poses a real and appreciable risk to the safety of children. 5. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. 6. The applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act. Evidence before the Tribunal 1. The applicant relied upon the following documents he provided to the respondent as part of the assessment process: 1. Letter from the applicant to respondent undated; 1. The respondent relied upon the following documents: 1. Bundle of documents filed pursuant to section 58 of the Administrative Decisions Review Act on 21 September 2015 and 20 May 2016. 1. In addition the respondent tendered written submissions prepared by Counsel for the respondent dated 27 May 2016. 2. The applicant gave oral evidence at the hearing and was cross-examined by Counsel for the respondent. 3. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act. (a) Seriousness of any matters that caused the refusal of the applicant's application for a clearance 1. The matters that caused the refusal of the applicant's application for a clearance was a workplace misconduct notification from a service provider for young people in out of home care (the employer). The applicant was at the time of the alleged conduct employed as a community services worker. In January 2014 it was alleged that the applicant had engaged in sexual misconduct towards a 15 year old female who was a resident at one of his employer's outlets (the residence). 2. The allegations against the applicant were made by fellow staff members and one of the young people with whom the applicant was working at the time. The allegations were that the applicant had repeatedly made inappropriate comments of a sexual nature to fellow staff members about a 15 year old female resident (Ms Y). It was also alleged he acted out sexual acts in the presence of staff and in close proximity to young people at the residence. These allegations were made by two staff members Mr AA and Mr AB. Following these complaints, a formal workplace investigation was conducted by the employer. During that investigation an interview with each of the staff members who made complaints about the applicant was conducted. Copies of the transcripts of these interviews and the record of interview conducted with the applicant by the employer on 31 January 2014 were in evidence. Allegations by Mr AA 1. Mr AA alleged the applicant said in around mid-November 2013 when the applicant was cleaning the room of a female resident " I'll get her to do it from behind" at the same time as acting out performing a sexual act. Mr AB is alleged to have been present and overheard the comment. 2. Also in mid-November 2013 Mr AA alleges while Ms Y was cleaning her room the applicant made a comment about another resident who was in her room at the time as being a "lap-dog" and the applicant then acted out performing fellatio. 3. Mr AA also alleges that in about January 2014 the applicant was leaving the pool area of the residence where they were working and the 15 year old female resident was swimming in the pool. He said to Mr AA "It's your turn to perv on her." 4. Mr AA is also recorded as saying in his record of interview that the applicant had made "lewd" comments about Ms Y on at least six other occasions although he could not remember the dates. No further details of these comments are set out in the record of interview. Allegations by Mr AB 1. Mr AB alleged in his record of interview that on an occasion during school holiday time. He and the applicant were outside the residence when the applicant acted out female masturbation by stroking his groin area with his fingers as he was talking about Ms Y. Mr AB also said in an e-mail to the employer on 23 January 2014 that the applicant used to sing song lyrics including the words "bubble butt" repeatedly when he was around Ms Y which agitated her. On one occasion this was in front of another young person while Ms Y was getting into a swimming pool. The applicant is also alleged to have said "look at her ass" a few times referring to Ms Y and commenting about other young people "to get it on." 2. On another occasion it was alleged by Mr AB that the applicant had been talking about Ms Y's mother about 10 metres away from where Ms Y and other young people were swimming in a pool. The applicant is alleged to have acted out a sexual act, being anal intercourse, while he was talking about Ms Y's mother. Mr AB said that the young people in the pool could have seen and heard the applicant although he does not think they did. He said the applicant frequently made "a lot of comments about [Ms Y's] bum." Allegations by Mr P 1. A record of an informal disclosure by a young male resident, Mr P, to a staff member of the employer was also in evidence. This records Mr P saying he wanted to make a formal complaint about the applicant. When asked why, Mr P said it was because he hates the applicant, the applicant says things about Ms Y which make Mr P "really uncomfortable" and he "says these things when I'm in her room or when I'm in the kitchen, like dumb things." Mr P gave the example that the applicant thought Mr P liked Ms Y because "she has a bouncy butt." Applicant's response to the allegations of sexual misconduct 1. The applicant has consistently denied these allegations. In cross-examination, when he was asked about the incidents outlined above the applicant denied the allegations that he had acted out sexual acts at his workplace or made sexually inappropriate comments about Ms Y. He admitted that he had sung a song which had repetitive lyrics which included the words "bubble butt" but denied it was directed at Ms Y. He said this was just a popular song at the time and other people at the residence would sing it too. 2. The applicant says the allegations that he made remarks of a sexual nature and acted out sexual acts were made by a fellow staff member Mr AA who felt the applicant did not support him or make him feel part of the team. In his statement to the Children's Guardian he relates a number of instances of this staff member himself making inappropriate comments to the applicant about young people in their care. In his oral evidence and written submissions the applicant displayed considerable anger towards his former employer and the respondent over their response to the allegations made against him. In particular he repeatedly criticised the processes of the respondent in his oral evidence. He said in any event there was no victim as it was not alleged that he had made the comments to the young people at the residence but rather to staff members. He did not acknowledge that the young people at the residence were at the very least close by at the time of making the comments and acting out sexual acts. 3. In February 2014 following the investigation by the employer, these allegations were sustained and the employer terminated the applicant for gross misconduct and referred the finding of misconduct to the NSW Ombudsman. 4. A second allegation against the applicant was also the subject of investigation by the employer. That allegation was that the applicant had not followed behavioural support plans of young people with whom he was working and on occasions had not shown the young people proper respect or courtesy. Following investigation that allegation was found not to be sustained. This allegation did not reach the standard for reportable conduct. 5. A third allegation against the applicant that he had allegedly taken young people he was supporting on outings for his own personal gain rather than outings and activities in the best interests of the young people. The basis of this finding was that the applicant took a young person from the residence on an outing to the shops to purchase some sporting memorabilia and items from a hardware shop. The workplace investigation report records that the applicant admitted this conduct. The allegation was sustained but did not meet the threshold for reportable conduct. 6. The applicant was at the relevant time in a position of authority and trust as a support worker for young people in an approved out of home care facility. The Tribunal is satisfied that the matters that 'triggered' refusing the applicant a WWCC clearance are serious due to the context in which the behaviour occurred. (b) The period of time since the matter occurred and the conduct of the applicant since that time 1. The matters occurred in late 2013 and early 2014. Since then the applicant has had no known criminal offences and there is no evidence before the Tribunal of any conduct which could be considered 'adverse' to the applicant since the matters which occurred in 2013 and 2014. 2. Since his termination by the employer 2014, the applicant said he has been ill and required major surgery with a long recovery time. He lodged an unfair dismissal claim in the FairWork Commission which was settled in July 2014 on confidential terms. (c) The age of the applicant at the time the matters occurred 1. The applicant was 45 years old when the matters occurred. (d) The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim 1. The female, Ms Y, about whom the applicant is alleged to have made inappropriate comments of a sexual nature was 15 years old at the time of the conduct. The age of Mr P the young male who was offended by comments allegedly made by the applicant is not known, however it is known he was under 18 at the time. Ms Y and Mr P were both vulnerable because they were children in out of home care and the applicant was an adult and in authority over them. 2. The two co-workers who complained about the applicant's conduct were both adults. (e) The difference in age between the victim and the applicant and the relationship (if any) between the victim and the applicant 1. The difference in ages between one of the victims and the applicant is not known. The other victim was reported to be 15 years old at the time of the incident. Therefore there is an approximate 30 year age difference between her and the applicant. Each of the victims were young people in out of home care in a facility at which the applicant was employed as a Support Worker. 2. The two other victims were adults who were co-workers of the applicant. Their ages are not known. (f) Whether the applicant knew, or could reasonably have known, that the victim was a child 1. The applicant knew the victims were children. (g) The applicant's present age 1. The applicant is now 47 years of age. (h) The seriousness of the applicant's total criminal record and the conduct of the applicant since the matter occurred 1. The applicant has no relevant criminal convictions. In 2011the applicant received a s.10(1)(a) dismissal of a drive with low range prescribed concentration of alcohol (PCA). 2. There is no evidence before the Tribunal of any conduct which could be considered 'adverse' to the applicant since the relevant events in 2013 and 2014. (i) The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition 1. The applicant did not provide any independent risk assessment report or reports from treating doctors or health professionals for the purpose of these proceedings. 2. The Tribunal notes there are a number of alleged incidents which involve a pattern of conduct. This involved sexually based comments and acting out sexual acts in the presence of or in close proximity to vulnerable young people in the applicant's care and to fellow staff members during the course of his employment. Clearly, if such conduct was to occur in the future, the impact would be significant on a victim, either a child or adult. (j) Any information given by the applicant in, or in relation to, the application 1. The applicant denies the allegations which formed the basis of the workplace sexual misconduct findings. The applicant told the Tribunal he seeks a clearance to enable him to seek work in the future and so that it is "not on his record" that he was refused a clearance. He said he does not intend to seek work with young people again. 2. The applicant did not provide any written references to the respondent as part of the risk assessment process. He told the Tribunal he did not know who to approach to obtain a reference and was concerned about people he approached for references becoming aware of the allegations of sexual misconduct. There were a number of references provided by the applicant to the Magistrate who heard his PCA charge in 2011, in evidence. These speak highly of the applicant's character. They are of limited assistance in addressing the issues for consideration by the Tribunal however, as they were given prior to the alleged conduct in question. 3. The applicant submits he is not and never has been a risk to the safety of children. He gave evidence of his long career dating from 1986 as both an employee and volunteer working with children and adults in the disability sector and in the Boy Scouts. More recently he worked with young people in out of home care placements. He said he has never been the subject of workplace complaints before the 2014 workplace investigation. 4. When asked about his understanding of appropriate professional boundaries when working with young people he said he had attended an ethics course and has always been professional in front of young people. He said he always made sure he was careful about what he said in front of them. (k) Any other matters that the Children's Guardian considers necessary 1. The respondent contends that the decision the subject of review is correct and should be affirmed. 2. The respondent says it is relevant that in 2005 the Child Exploitation Internet Unit of the State Crime Command received information from the Australian Federal Police (AFP) that someone using the applicant's name and credit card had purchased access to a child pornography website through a company. 3. The applicant strongly denies that he has ever purchased access to child pornography. In a letter to the Children's Guardian dated 11 June 2014, the NSW Ombudsman says this allegation, which is said to have occurred between 1999 and 2001, was never investigated by the AFP. Therefore it was not confirmed that the applicant personally accessed child pornography. 4. Given the serious nature of this allegation, the fact that there was no investigation conducted into the allegation and the applicant's denial of the allegation, the Tribunal did not place any weight on this information in reaching its decision. 5. In addition the respondent says that at the time of the refusal of the WWCC clearance the applicant had not been able to demonstrate successful child related employment and positive circumstantial change. 6. The respondent says the recent and sexual nature of the misconduct are of significant concern. Consideration 1. In this matter, the role of the Tribunal is to review the decision of the Children's Guardian to refuse the applicant a WWCC clearance, and to decide what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable law. 2. The applicable law includes the Child Protection (Working with Children) Act, which provides that the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature. In this matter, the Tribunal is tasked with determining whether, on the balance of probabilities, the applicant poses a risk to the safety of children. 3. Relevantly, a WWCC clearance must be granted to the applicant unless the Tribunal is satisfied that the applicant poses a risk to the safety of children. It has previously been held by this Tribunal that no conditions may be placed on the issue of a WWCC clearance. 4. The assessment requirement was triggered by those matters referred to in clause 2 (a) of Schedule 1. Section 14 of the Act requires a risk assessment if any of the matters specified in Schedule1 of the Act apply to the person. 5. The Tribunal acknowledges that there is no evidence that the applicant has engaged in any further sexual misconduct or other inappropriate behaviour other than the matters which formed the basis for the workplace investigation in 2014. This weighs in the applicant's favour. 6. However, there was no compelling evidence before the Tribunal to support the applicant's suggestion that the reason for the sexual misconduct complaint against him by other staff was because he was disliked by one of these staff members and the other staff member stood to gain employment full-time if the applicant was terminated from his position. The applicant gave no explanation as to why he thought the young person, Mr P, made allegations against him. 7. The applicant has not obtained any psychological or other expert reports. The applicant's case is that he does not need to prove that there is no likelihood of repetition because there was nothing to repeat. 8. There is no information from the applicant's treating doctors or other health professionals involved in the applicant's care. Such information would have been of assistance in assessing the risk to children. 9. In addition, the Tribunal notes that the applicant elected not to provide any corroborative evidence about his employment history. His concerns about alerting past and current employers to the workplace investigation and findings of sexual misconduct, meant there was no corroboration of the applicant's account that he has not been the subject of any workplace complaints or disciplinary action in the past. It also means there is very limited evidence before the Tribunal of the applicant's work history and experience, including when he has worked with children. 10. It was clear from the written evidence before the Tribunal and the applicant's oral evidence that he feels highly aggrieved by both the allegations and the processes which followed, including the risk assessment process by the respondent. In his evidence, the applicant displayed considerable focus on his perceived unjust treatment and the impact on him of the workplace investigation findings. This demonstrates a lack of insight into the seriousness of the concerns held by those tasked with investigating, prosecuting and implementing measures in the context of child protection and is of concern. 11. The Tribunal considered the workplace investigation by the applicant's employer to be comprehensive, involving formal interviews with the relevant staff and the applicant. However, the Tribunal is unable to make a positive finding as to whether the conduct which formed the basis of the workplace finding of sexual misconduct occurred. The Tribunal finds that the evidence before it is not sufficient to establish those allegations to the civil standard. That is not to suggest that the allegations did not occur or, in the alternative, did occur, but rather that the Tribunal is unable to make a positive finding, on the balance of probabilities, either way. Therefore, whether the inappropriate conduct occurred, or did not occur, remains open. 12. The decision of Office of the Children's Guardian v CFW [2016] NSWSC 1406 involved an appeal to the Supreme Court of New South Wales against a decision of the Tribunal where the Tribunal found it was unable to make a positive finding that the conduct alleged against an applicant for a WWCC, had occurred or not occurred. In that matter Harrison J said that the Tribunal failed properly to have regard to or to assess those matters that it considered to be "open". At para 30 his Honour stated [the Tribunal's] "open conclusion" suggests that there remained at least some degree of suspicion or doubt as to whether the defendant had engaged in criminal or "inappropriate conduct". That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the defendant posed a risk to the safety of children. 1. The Tribunal is not required to determine the guilt or otherwise of the applicant in relation to the allegations and findings of sexual misconduct. It can be satisfied on the basis that the circumstances surrounding a particular incident or course of conduct means there is a risk to a child, or that the existence of a risk has not been disproven. Mr AA and Mr AB's complaints about the applicant are similar, involving sexual comments and actions by the applicant which were focused on Ms Y. This conduct was alleged to have been repeated over a number of months. The complaint by Mr P about the applicant has a similar theme to the allegations by Mr AA and Mr AB that the applicant made inappropriate comments regarding Ms Y's physical appearance. Mr P's complaint that the applicant made him feel uncomfortable is consistent with Mr AA and Mr AB's complaints. 2. In this matter the Tribunal was satisfied having regard to all of the material before the Tribunal, including the number, nature and similarity of the allegations, that the existence of real and appreciable risk has not been disproven. Having regard to all of the material before the Tribunal, including the pattern of the allegations and the similar theme running through the allegations, the Tribunal is satisfied that the applicant poses a real and appreciable risk to children. 3. The evidence referred to in these reasons establishes that the applicant poses a real and appreciable risk to the safety of children. Conclusion 1. The Tribunal has considered all of the matters in s.30 (1) of the Child Protection (Working with Children) Act. The available evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children posed by the applicant. The Tribunal is satisfied the applicant poses a real and appreciable risk to children, and the correct and preferable decision is to affirm the decision of the respondent to refuse to grant the applicant a WWCC clearance. ORDERS 1. Accordingly, the Orders of the Tribunal are as follows: 1. The decision of the Children's Guardian dated 14 July 2015 to refuse the applicant's Working with Children Check clearance is affirmed. 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: 23 January 2017