Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DYN v Children's Guardian [2019] NSWCATAD 271 Hearing dates: 19 December 2019 Date of orders: 24 December 2019 Decision date: 24 December 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: G Blake AM SC, Senior Member P Foreman AM, General Member Decision: (1) An order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act (the Child Protection (Working with Children) Act 2012 (NSW)) in respect of the offence of indecent assault under s 39(1) of the Crimes Act 1958 (Vic). (2) An order pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) that the respondent is to grant the applicant a working with children check clearance. Catchwords: ADMINISTRATIVE LAW — Working with children — Application for enabling order — Where applicant committed offence of indecent assault involving an adult — Whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children Legislation Cited: Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1958 (Vic) Sentencing Act 1991 (Vic) Working with Children Act 2005 (Vic) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Office of the Children's Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Commissioner for Children and Young People v IK [2005] NSWSC 1136 CSW v Children's Guardian [2017] NSWCATAD 326 CTM v Children's Guardian [2016] NSWCATAD 280 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 DAR v Children's Guardian [2018] NSWSC 942 GMO v NSW Office of the Children's Guardian [2018] NSWSC 1348 Secretary, Department of Justice v LMB [2012] VSCA 143 ZZ v Secretary, Department of Justice [2013] VSC 267 Texts Cited: None cited Category: Principal judgment Parties: DYN (Applicant) Children's Guardian (Respondent) Representation: Counsel: Applicant (Self represented) Ms C Ernst (Respondent) Solicitors: Crown Solicitor (Respondent) File Number(s): 2019/00230609 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 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 Summary 1. The applicant, who is referred to as DYN, applied for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act). The Children's Guardian, the respondent, refused to grant a working with children check clearance (NSW clearance) to the applicant because he was a disqualified person by reason of having been found guilty of the offence of indecent assault under s 39(1) of the Crimes Act 1958 (Vic) (disqualifying offence). 2. At the conclusion of the hearing we made the following orders: 1. an order pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) declaring that the applicant is not to be treated as a disqualified person for the purposes of that Act (the Child Protection (Working with Children) Act 2012 (NSW)) in respect of the offence of indecent assault under s 39(1) of the Crimes Act 1958 (Vic); 2. an order pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) that the respondent is to grant the applicant a working with children check clearance; 1. and indicated that we would subsequently provide our reasons for decision. Non-publication of names 1. On 15 August 2019, the Tribunal made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) that, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. Jurisdiction, relevant legislation and applicable legal principles 1. Section 3 of the WWC Act provides that its object 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 working with children check clearances. 2. Section 4 of the WWC Act provides that 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." 3. Section 5B of the WWC Act provides that the expression "risk to the safety of children" means a real and appreciable risk to the safety of children. 4. The respondent is not permitted to grant a NSW clearance to a person convicted of an offence specified in Schedule 2 to the WWC Act, if the offence was committed as an adult: WWC Act, s 18(1)(a). The offence of indecent assault under s 39(1) of the Crimes Act 1958 (Vic) is specified in cl 1(1)(z) of Schedule 2 because it constitutes an offence in cl 1(1)(d) of Schedule 2. 5. Having committed a Schedule 2 offence, the applicant is a "disqualified person": WWC Act, s 18(1). However, 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 the WWC Act in respect of an offence specified in the order (an enabling order): WWC Act, s 28(1). If the Tribunal makes such an order, it may also order the respondent to grant the person the subject of the order a clearance: WWC Act, s 28(6). 6. An applicant must fully disclose to the Tribunal any matters relevant to the application: WWC Act, s 28(5). 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: WWC Act, s 28(7). 8. When determining an application under s 28(1) of the WWC Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the WWC Act: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. 1. Further, pursuant to s 30(1A) of the WWC Act, the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children. Section 30(1A) provides: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. 1. As indicated in the objects of the WWC Act and s 4, the Tribunal's jurisdiction under s 28 remains protective and not punitive in nature. That is, the object of the WWC Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 (AYU) at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111 (FZ) at [61] in respect of the former Child Protection (Prohibited Employment) Act 1998 (NSW) (CPPE Act). 2. The issue for determination is whether the applicant has established, on the balance of probabilities, that he does not pose a risk to the safety of children: AYU at [35]; FZ at [61] in respect of the former CPPE Act. 3. The definition under s 5B of a "risk to the safety of children" draws upon the explanation given in relation to the word "risk" as it appeared in the former CPPE Act of "whether there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 (V) at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 (BKE) at [26]; CJT v Office of the Children's Guardian [2016] NSWSC 738 (CJT) at [40]. 4. In CJT, Fullerton J at [39] observed that the remarks of Young CJ in Eq about the meaning of risk in V at [42] have "been consistently applied in construing the concept of a 'risk to the safety of children' for the purposes of ss 27 and 28 of the Working with Children Act". In BKE (a case concerning an application for an enabling order), Beech-Jones J at [26] referred to the meaning of "risk to the safety of children" in s 28(7) of the WWC Act and said that this was to be understood by reference to the comments of Young CJ in Eq in V at [42]. His Honour at [28] also said that "the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children". 5. Section 28(7) does not permit a calibrated assessment of the risk posed to the safety of particular children. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area": BKE at [4], [27]. 6. The Tribunal may find that the presumption in s 28(7) has not been rebutted even where it is not satisfied, on the balance of probabilities, that a particular act or allegation is made out: BKE at [33]. As McCallum J observed in GMO v NSW Office of the Children's Guardian [2018] NSWSC 1348 at [60], in the context of review proceedings under s 27(1) of the WWC Act: The statute plainly contemplates that, whereas the imposition of a criminal penalty requires proof of a specific allegation beyond reasonable doubt, it is enough to disqualify a person from clearance under the Act that there exists a real and appreciable risk to the safety of children. That is an evaluative judgement. It is to be undertaken in a very different context from the assessment of the allegations in the criminal context, most importantly including the fact that the applicant has a statutory duty to disclose all relevant information. 1. In CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered in ZZ v Secretary, Department of Justice [2013] VSC 267 (ZZ), where Bell J [215]-[216] held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk. 2. The Tribunal may not grant an enabling order unless "satisfied" of the matters referred to in s 30(1A). That requires, at a minimum, that the Tribunal has made up its mind reached a conclusion, based on the evidence, about the particular matters in sub-paragraphs (a) and (b): Children's Guardian v CVE [2017] NSWSC 1342 at [23], [26]. 3. The reasonable person, for the purposes of s 30(1A)(a), is a person with knowledge of the matters before the Tribunal, which is a person privy to all the evidence before the Tribunal. The relevant question is whether a reasonable person, knowing what the Tribunal knows, would allow his or her child to have unsupervised direct contact with the applicant: DAR v Children's Guardian [2018] NSWSC 942 at [56]-[57]. 4. In Secretary, Department of Justice v LMB [2012] VSCA 143 at [25]-[26] the Victorian Court of Appeal explained the operation of the "public interest" test in s 26(3) of the Working with Children Act 2005 (Vic), which operates to similar effect as s 30(1A)(b) of the WWC Act, in the following terms (footnotes omitted): [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children) have their suitability to do so checked by a government body'. [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest. 1. In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136]-[137] said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent's submissions as to weight). A reasonable person whilst approaching the manner with some caution would find that any risk was insufficient to cause them to have concerns about access to their child. 2. In CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 at [75] the Tribunal held that the concept of public interest gives priority to the broader interests of the community over private interests, and referred to ZZ where Bell J at [202] adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children. 3. In ZZ at [202] Bell J referred to the relevance and importance of rehabilitating offenders. Bell J at [203] said: [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. In FZ, Young JA at [67]-[68] expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]–[84] that the applicant carried the onus on the Briginshaw standard to establish that he is not a risk to children. 2. It has been observed that it is difficult to envisage how the Briginshaw standard applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in the Tribunal that pursuant to s 38(2) of the CAT Act is not required to apply the rules of evidence: BKE at [29]. Background 1. On 8 March 2019, the applicant applied for a NSW clearance. 2. On 10 April 2019, the applicant was refused a NSW clearance as he was a disqualified person because he had been found guilty of the disqualifying offence. Procedural history 1. On 25 July 2019, the applicant commenced these proceedings against the respondent by filing an application. 2. On 15 August 2019, the Tribunal made orders for the hearing of the proceedings. The hearing 1. At the hearing the applicant relied on the following written evidence: 1. a personal statement; 2. an article from news page of a Victorian Hospital titled "Aboriginal art murals welcome patients and staff at RMH Royal Park Campus"; 3. a flyer regarding a Victorian Hospital's "You Made a Difference Awards"; 4. a certificate of appreciation concerning a Victorian Hospital's Aboriginal Art Murals; 5. a NSW Department of Education, Certificate of Completion, Child Protection Awareness Training, dated 27 February 2019. 1. The applicant gave oral evidence. 2. The respondent relied on the following written evidence: 1. the documents filed on 29 September 2019 (pp 1-43); 2. the documents filed on 21 November 2019 (pp 1-80). The written evidence of the applicant 1. In his written evidence the applicant dealt with the matters set out below. The circumstances in which the disqualifying offence was committed 1. The disqualifying offence, which the applicant described as "the incident", occurred during a very difficult time and circumstances. He had only been married for 3 years at the time and was working as a laboratory technician. The effect of the disqualifying offence 1. The applicant said that the incident had changed everything, including his plans for the future. Since then he had devoted himself to working in science/medical research as a laboratory assistant, a career path that has given him purpose, and passion for helping others. The applicant's future 1. The applicant said that all of his life he has wanted to complete tertiary education, and his interest is in human biomechanics and lower limb deficits in people recovering from trauma or disease. The need for a NSW clearance 1. The applicant, who is now aged 59 years, is in his first year of a degree in podiatric medicine at a university in New South Wales. To complete the degree the applicant is required to participate in clinical placements in the second, third, and fourth years. He requires a NSW clearance and a clearance under the Working with Children Act 2005 (Vic) (Vic clearance) to do so, as well as having completed Child Protection Awareness Training of the NSW Department of Education. The written evidence of the respondent 1. In her written evidence the respondent dealt with the matters set out below. The effect of the disqualifying offence 1. Victoria Police in its letter dated 6 June 2018 to the respondent provided the following information about the disqualifying offence: 1. on 5 May 1992, the applicant, who was born on 21 October 1960, was convicted in the Broadmeadow Magistrates' Court of indecent assault, contrary to s 39(1) of the Crimes Act 1958 (Vic); 2. the facts of the disqualifying offence, which occurred on 23 August 1990, were: At approximately 10am the victim in company with her husband attended at an address. There they met the applicant and discussions took place in relation to the victim renting the premises from the applicant who was occupying the house at the time. At approximately 10:30am, the victim's husband left the premises to return to work leaving his wife and the applicant to speak further about the rental arrangements. During the conversation the applicant went and had a shower and asked the victim to go in and talk with him whilst he was in the shower. The victim then stood against some dresser drawers, when the applicant emerged from the shower wrapped in a towel. At this time he grabbed the victim's hand and placed it on his chest and then dropped the towel and pulled her hand onto his penis. The applicant denied all allegations. 1. the applicant was sentenced to a fine of $1250 and ordered to pay $20 in costs. The Vic clearance 1. The Victorian Department of Justice and Regulation in its letter dated 6 June 2018 to the applicant advised that he had passed the WWC check under the Working with Children Act 2005 (Vic). 2. The Victorian Working with Children Unit carried out an assessment of the applicant in which it considered the following 10 factors and relevantly included the following information: 1. the nature and gravity of the offence, and Its relevance to child-related work; 2. the period of time since the applicant committed the offence; 3. whether a conviction was recorded for the offence; 4. the sentence imposed for the offence; 5. the ages of the applicant and the victim at the time the applicant committed the offence; 6. whether or not the conduct that constitutes the offence has been decriminalised since the applicant committed the offence; 7. the applicant's behaviour since he committed the offence; 8. any information given by the applicant in, or in relation to, the application: The following is a summary of other information provided during the phone interview. [name omitted] stated: He felt sick talking about it and even thinking about it. He was "told to wear it and just plead guilty" by his legal aid lawyer, and that he would likely just get a fine. He further stated he was concerned about getting a fine as he was "already struggling financially'. At the time he was not exactly sure what he was pleading guilty to; however, he agreed to plead guilty so he could put it behind him and move on. There was no drug, alcohol or mental health issues involved. He sought support from the Salvation Army at the time as he struggled being accused of something he did not do. He currently works part-time in a hospital doing data-entry, studies full-time (3-days a week) at [a] University in NSW and has caring responsibilities for his elderly mother. He had not remarried and did not have any children. He is well regarded and recognised for his work related to stem cell and gene therapy research. His WWCC application related to his study of Podiatric Medicine and clinical placements (commencing in July 2018). 1. any other matter that the Secretary considers relevant to the application: Details of two references were obtained from the applicant [name omitted]. 1. [name omitted] - Academic, Medicine - [name omitted] Hospital (work colleague) The referee [name omitted] reported to have known the applicant [name omitted] for about three years, through various research projects they worked on together. She stated she would actively seek to have the applicant [name omitted] involved in her research as he was "trusted, reliable and an excellent communicator". She said he is "very friendly and patient with people ..... talks calmly .. .. caring towards patients". The referee had observed the applicant [name omitted] interact with her own child on about seven occasions in the past nine months when she had taken her infant son to work. The referee stated the applicant [name omitted] was engaging and detailed age appropriate activities they did together. She said her child responded well and was happy to be with the applicant. The referee was "very confident" to leave her son unsupervised with the applicant. The referee was positive about the applicant [name omitted] being suitable to hold a WWCC card. 2. [name omitted] - nurse (work colleague) The referee [name omitted] reported to have known the applicant [name omitted] for about 4-5 years through their work. Although the referee had not observed the applicant [name omitted] interacting with children he provided information about the applicant's character which he described as; friendly, a very good communicator, very funny, good-hearted, willing to help a lot, very kind to people and good at solving problems. The referee [name omitted] thought the applicant was suitable to hold a WWCC card. 1. the likelihood of future threat to a child caused by the applicant: Considering the applicant's view of the offence it is unsurprising he did not; acknowledge the offending behaviour, demonstrate remorse, or show empathy towards the victim. However, for the purpose of assessing this factor, from the information available to the WWCC Unit, there is insufficient evidence to suggest that [name omitted] is likely to pose a future threat to the safety of children. 1. On 4 June 2018, the delegate of the Secretary to the Department of Justice and Regulation made the following decision: When the Secretary to the Department of Justice & Regulation (the Secretary) makes a decision or takes an action under the Working with Children Act 2005 (the Act), the protection of children from sexual and physical harm must be the paramount consideration. Pursuant to section 13(2) of the Act, the Secretary must refuse to give an Assessment Notice on a Category B application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children. Having regard to the Information available to me, I am satisfied that the applicant would not pose an unjustifiable risk to the safety of children. I am satisfied that a reasonable person being, an ordinary prudent person, free from any bias or prejudice, and being fully appraised of the material set out in the (a) to (j) factors above, would allow their child to have contact with [name omitted] in any type of child-related work. I am satisfied that [name omitted] engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children. Accordingly, I issue an Assessment Notice. The subsequent conduct of the applicant 1. Criminal history checks indicate that, since his conviction for indecent assault. the applicant: 1. has not been convicted of an offence against Australian law; 2. has not been investigated for any violent, child abuse or sexual offences in NSW; 3. has not been the subject of an apprehended violence order in NSW; 4. has no criminal history in NSW. 1. On 14 September 2019, the applicant provided the following information to the Crown Solicitor's Office in answer to its request for information in its letter dated 13 September 2019: 1. he had not worked with children since the time of his offending; 2. he had never had children reside in his home; 3. he had not been the subject of disciplinary action. The oral evidence of the applicant 1. The applicant read a statement in which he said that he was "ashamed", "deeply remorseful" and "truly sorry" for what had happened. 2. In cross-examination, the applicant said in child protection training he had learnt how to detect and respond to issues. He regarded assault against children as "horrific" and "horrid". He said he was partly to blame for the disqualifying offence because he had kissed the victim which was wrong because he was married. He thought that the victim had consented. 3. In answer to our questions, the applicant said he did not have current contact with children because his nephews were young adults. He was currently involved in the care of his mother. He said he was "ashamed", "deeply remorseful" and "truly sorry" because his action in kissing the victim was wrong. The oral submissions of the applicant 1. The applicant did not directly address the criteria for the making of an enabling order under the WWC Act. He said that he was dedicated to working in the health sector and helping people. The written submissions of the respondent 1. The respondent in submissions dated 4 December 2019, after setting out the jurisdiction of the Tribunal, the relevant legislation and the applicable legal principles, the written evidence of the applicant and the respondent: 1. addresses the matters in s 30(1) of the WWC Act; 2. maintains a neutral position as to whether the applicant should be granted an enabling order; 3. says that the following issues may concern the Tribunal: 1. the applicant does not appear to have expressed culpability for the offending; 2. the applicant's referees, though agreeing that he would be a suitable candidate to work with children, did so without any knowledge of his criminal offending. The oral submissions of the respondent 1. Counsel for the respondent substantially repeated the written submissions and drew attention to the following matters: 1. the respondent was satisfied that the applicant had rebutted the presumption that he poses a risk to the safety of children; 2. the respondent was not able to be satisfied that: 1. 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; 2. it is in the public interest to make an enabling order; 3. because of the applicant's limited insight into his offending. Conclusions Assessment of the evidence of the applicant 1. We find the applicant to have been a truthful witness. It was clear from the content and manner of his evidence that the disqualifying offence has had a substantial adverse impact on his life 2. We do not accept that the applicant lacks insight into his offending because of the circumstances in which he pleaded guilty to the disqualifying offence. However, he does have insight that he had engaged in inappropriate intimate behaviour with the victim. 3. We are satisfied that the applicant wishes to contribute to the community by working in the health sector in podiatry or a related discipline. Does the applicant pose a risk to the safety of children? 1. Having regard to our findings as to the factors in s 30(1) of the WCC Act (other than the factor in s 30(1)(j1) which is inapplicable), we are satisfied that the applicant does not pose a risk to the safety of children. The seriousness of the offences, the period of time since those offences occurred and the conduct of the person since they occurred (s 30(1)(a) and (b)) 1. The disqualifying offence is objectively serious, carrying a maximum penalty of ten years' imprisonment as the relevant time: Sentencing Act 1991 (Vic), s 109(1). While we do not have the benefit of the Magistrate's sentencing remarks, the imposition of a fine of $1250 suggests that the Magistrate considered the offending to have been at the lower range of seriousness. The disqualifying offence occurred on 23 August 1990. The applicant has not reoffended and has not been charged with any criminal offences since that time. The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant's present age (s 30(1)(d)-(g)) 1. The disqualifying offence occurred when the applicant was 29 years old. The victim of the disqualifying offence was an adult woman. We do not know the difference in age between the applicant and the victim. The applicant is now 59 years old. The seriousness of the applicant's criminal record, the conduct of the applicant since the offences occurred, 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)(h-i)) 1. The applicant had no criminal history prior to the disqualifying offence. He has not reoffended. He has not been charged with any criminal offences since the disqualifying offence. 2. We are satisfied that there is a very low likelihood of the applicant engaging in conduct as described by Victoria Police or by the applicant himself. Information given by the applicant in, or in relation to, the application (s 30(1)(j)) 1. We regard as significant the fact that the applicant has successfully completed Child Protection Awareness Training of the NSW Department of Education. 2. We regard as very significant the fact that the applicant has been granted a Vic clearance, having regard to the 10 factors taken into account in the assessment of the applicant. Any other matters that the Children's Guardian considers necessary (s 30(1)(k)) 1. We do not consider that the two matters raised by the respondent, being the applicant's lack of expression of culpability for the offending, and the lack of knowledge of the applicant's criminal offending by his referees, demonstrate that the applicant poses a risk to the safety of children. Has the applicant rebutted the presumption that he poses a risk to the safety of children? 1. Having regard to our findings, we are satisfied on the balance of probabilities that the applicant has rebutted the presumption that he poses a risk to the safety of children. Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work (s 30(1A)(a))? 1. The information that a reasonable person would require to properly consider the test in s 30(1A)(a) of the WWC Act whether "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" is the evidence set out above. 2. Having regard to all this evidence, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work. The reasonable person would have particular regard to the following matters: 1. the disqualifying offence did not involve children; 2. the applicant has no prior criminal history, and has not been charged or convicted of any other offence since the disqualifying offence; 3. two of the applicant's work colleagues have confidence in him, and one of them has trusted him to care for her child; 4. the applicant has been granted a Vic clearance. Is it in the public interest to make the orders sought by the applicant (s 30(1A)(b))? 1. We are satisfied that it is in the public interest to make the orders sought by the applicant for the following reasons: 1. the applicant should not be turned away from his commitment to obtain qualifications in podiatric medicine; 2. the applicant should be encouraged to acquire qualifications, experience and expertise for the benefit of others through working in the health sector in podiatry or a related discipline. ********** 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: 24 December 2019