Office of the Children’s Guardian v DVR

1. [1]

   HER HONOUR: This is an administrative law matter seeking judicial review of a decision of the New South Wales Civil and Administrative Tribunal (“NCAT”).

2. [2]

   By summons filed 27 August 2021 the plaintiff relevantly seeks:

   1. (1)

      The orders made by NCAT on 30 July 2021 be set aside.

   2. (2)

      The proceedings be remitted to the Tribunal, differently constituted, to be determined according to law.

3. [3]

   The plaintiff is the Office of the Children’s Guardian (“Children’s Guardian”). The defendant, will be referred to by the pseudonym DVR. The parties relied on a joint courtbook (“Ex A(1)-(2)”).

4. [4]

   At the hearing, the plaintiff was represented by Z. Heger of Counsel. The defendant was represented by L. Sims of Counsel.

5. [5]

   On 14 September 2021 this Court made orders that the defendant be referred to by the pseudonym “DVR”, and that the persons known as “BE” and “JM” in the Tribunal below be referred to by those pseudonyms. This Court also made orders prohibiting the publication of information that reveals or tends to reveal the identity of DVR or BE for 30 years. It was unnecessary to make any such order in respect of JM, in the light of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

6. [6]

   There is no dispute between the parties regarding the background, procedural history and legislative framework. I gratefully adopt most of the parties’ submissions regarding these topics with some additions. I shall briefly set it out them out here.

Background

1. [7]

   The plaintiff appeals from a decision of the Tribunal given on 30 July 2021: DVR v Children’s Guardian [2021] NSWCATAD 223 (“the Tribunal’s Decision”). The appeal is brought pursuant to cl 17(1)(a) of Schedule 3 to the Civil and Administrative Tribunal Act 2013 (NSW)(“NCAT Act”) as of right on a question of law.

2. [8]

   The hearing before the Tribunal concerned the plaintiff’s decision to refuse the defendant’s application for a working with children check clearance (“WWCC”). This decision arose out of allegations that the defendant sexually assaulted his stepdaughter (“JM”), a 14-year-old girl (“BE”), and two girls under the age of 10 years.

3. [9]

   The main issues for determination before the Tribunal were: firstly, whether the defendant posed a real and appreciable risk to the safety of children under s 18 of the Child Protection (Working with Children) Act 2012 (NSW) (“WWC Act”); secondly, if he does not, whether a reasonable person would allow the defendant to have direct, unsupervised contact with their children; and finally, whether it is in the public interest to grant the defendant a WWCC under s 30(1A) of the WWC Act.

4. [10]

   In 2015, DVR was charged with seventeen sexual assault offences against JM, namely aggravated sexual intercourse and aggravated indecent assault. The offences were alleged to have occurred between 2005 and 2007 when JM was aged between 13 and 15 years. In 2017, DVR was acquitted of all charges by jury decision in the District Court.

5. [11]

   Although JM had made reports in 2006, 2007 and 2008 of sexual assault by the DVR, she did not request the matter be investigated until the relationship between the DVR and her mother ended in 2014. In a police statement she said she was motivated to request the investigation after having found out from her mother that the DVR may have sexually assaulted someone else.

6. [12]

   A 2017 Police Force Evidence Based Investigators Report (“Police Report 2017”) sustained a finding that, on the basis of an evidence based non-criminal investigation, DVR had sexually assaulted JM as alleged.

7. [13]

   The 2017 Police Report took into account that, between 2004 and 2006, JM told her school friend, a school counsellor and a boyfriend that DVR had sexually assaulted her. The report also found that a further disclosure in 2007 was consistent with other disclosures, as was JM’s police statement made in 2014.

8. [14]

   DVR denied assaulting JM and took the view that JM had made the allegations because he had tried to stop her relationship with a teenager known to police.

9. [15]

   In late April 2014, DVR was on duty in the early hours of the morning when he and two other police officers found a drunk, 14 year old girl, BE, wearing only underpants, ugg boots and a singlet top in the company of three young men. DVR took BE home alone in his police vehicle, which was a van used to transport working police dogs and which had only one passenger seat, in the front of the van.

10. [16]

    Later that morning, BE’s mother told police of her daughter’s disclosure that, in the police van on the way home, DVR digitally penetrated her, performed oral sex on her and touched her breasts. Both BE and DVR participated in recorded interviews with police at the time.

11. [17]

    In a 2016 NSW Police Force Evidence Based Investigators, the allegations by BE were not sustained. The finding was made following advice received from the Office of the Director of Public Prosecutions (“DPP”) that there was no likelihood of a conviction and they would not be proceeding with the matter. The Report did however find that the defendant had breached the NSW Police Code of Conduct by transporting an underage female alone and by not ensuring she was left with a responsible adult.

12. [18]

    In 2016, the Children’s Guardian received a notification in relation to allegations that the defendant had sexually assaulted two girls under the age of 10 years between 2001 and 2002. The allegations were not sustained, the girls in question (now women) declined to provide any information and there was no criminal investigation.

13. [19]

    DVR denied these allegations. He understood the allegations to have been made in the context of a friend’s family law proceedings where the wife had accused the husband (the defendant’s friend) of the sexual assault of her children. The defendant had given evidence on behalf of the husband and only upon receiving the information from the Children’s Guardian did he become aware that the wife had also made allegations against him.

Procedural history

1. [20]

   On 4 December 2017, the defendant applied to the Office of the Children’s Guardian for a volunteer WWCC under s13 of the WWC Act nominating ‘clubs or other bodies’ as the relevant child related employment sector.

2. [21]

   On 29 January 2018, the defendant was subject to a risk assessment pursuant to s 14 and 15(1) and cl 1(1)(b) of Sch 1 to the WWC Act in circumstances where proceedings had been commenced against him for disqualifying offences (aggravated indecent assault and aggravated sexual intercourse against JM). He was acquitted of those charges.

3. [22]

   On 18 May 2018, the Children’s Guardian imposed an interim bar under section 17 of the WWC Act on the basis that the defendant posed a real and appreciable risk to the safety of children.

4. [23]

   By letter dated 18 April 2019, the plaintiff refused the defendant’s application for a WWCC under s 18(2) of the WWC Act on the basis that the defendant posed a real and appreciable risk to the safety of children.

5. [24]

   On 3 May 2019, the plaintiff filed an application for an administrative review under the Administrative Decisions Act 1997 (NSW) (“Administrative Decision Act”) pursuant to s 27 of the WWC Act.

6. [25]

   The plaintiff’s application was heard on 22 October and 11 December 2020. Following the hearing, both parties filed supplementary submissions and an agreed chronology.

7. [26]

   On 30 July 2021, the Tribunal delivered its decision. The Tribunal set the decision aside and granted the defendant a WWCC: see Tribunal Decision at [166], [167].

The legislative framework

1. [27]

   The paramount consideration in the operation of the WWC Act is “[t]he safety, welfare and well-being of children and, in particular, protecting them from child abuse”: see s 4 WWC Act. Section 3 sets out the objects of the WWC as follows:

2. [28]

   Section 12 of WWC Act concerns the two classes of clearances. Section 12 reads:

3. [29]

   Pursuant to s 13 of the WWC Act, a person may apply to the Office of the Children’s Guardian for a WWCC. Where the Children’s Guardian becomes aware that the defendant for a WWCC is subject to an assessment requirement, the Children’s Guardian must conduct a risk assessment to determine whether the defendant poses a risk to the safety of children: see s 15(1) WWC Act.

4. [30]

   Pursuant to s 14 of the WWC Act, A person is subject to an assessment requirement under the WWC Act if any of the matters specified in Schedule 1 apply to the person. Schedule 1 includes where proceedings have been commenced against a person for an offence specified in cl 1 of Sch 2. This includes, for example, offences under ss 61M (aggravated indecent assault) and 66C (aggravated sexual intercourse) of the Crimes Act 1900 (NSW)). If the offence was committed as an adult, and the person is not, because of those proceedings, a disqualified person (cl 1(1)(b)).

5. [31]

   Pursuant to s 17 of the WWC Act, the Children’s Guardian may, at any time after receiving an application for a WWCC, determine that the defendant is subject to an ‘interim bar’, being a bar on the defendant engaging in child-related work.

6. [32]

   Section 18 of the WWC Act regards the procedure for determination of applications for WWCC clearances and is the central focus of this Judicial Review. Section 18 reads:

7. [33]

   ‘Risk to the safety of children’ is defined in section 5B of the WWC Act as “a real and appreciable risk to the safety of children”.

8. [34]

   A person who has been refused a WWCC by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of the decision within 28 days after notice of the decision was given to the person: see s 27 WWC Act.

9. [35]

   In determining an application under Part 4, the Tribunal must consider the matters listed under s 30(1) of the WWC Act. Section 30(1) reads:

10. [36]

    Section 30(1A) of the WWC Act reads:

Legal Principles

1. [37]

   The abovementioned provisions were considered in the recent decision of CXZ v Children’s Guardian [2020] NSWCA 338 (“CXZ v Children’s Guardian”). In this case, at [7a], Basten JA confirmed that the correct test to be applied in assessing whether a person poses a risk to the safety of children is that which was addressed in Tilley v Children’s Guardian [2017] NSWCA 174 (“Tilley v Children’s Guardian”). In that case, the Court followed Beech-Jones J in BKE v Office of the Children’s Guardian [2015] NSWSC 523 (“BKE v Children’s Guardian”), who applied the principles identified by the High Court of Australia in M v M [1988] HCA 68; 266 CLR 69 (“M v M”).

2. [38]

   The issue in M v M was whether providing custody or access to a parent may expose the child to an unacceptable risk of sexual abuse. Having regard to the paramount issue to be decided, namely, the interests of the welfare of the child, the High Court said at [77]):

3. [39]

   CXZ v Children’s Guardian, in relation to s 18(2) of the WWC Act, it was held by Simpson AJA, at [48]-[49] and [52]-[54]:

4. [40]

   This ‘three-step process’ is set out by Simpson AJA at [55]:

5. [41]

   Having regard to what Beech-Jones J said in BKE, Simpson AJA further stated at [57]-[58]:

6. [42]

   McCallum JA, who agreed with the decision of Simpson AJA, stated at [28]-[30]:

7. [43]

   Basten JA, who in dissent refused leave to appeal, distilled the main points of his reasoning at [7]:

The Tribunal’s decision

1. [44]

   On 30 July 2021, the Tribunal, comprised of Senior Members S. Leal and L. Houlahan, set aside the decision of the Office of the Children’s Guardian and granted the defendant a WWCC (the Tribunal’s decision). The plaintiff seeks judicial review of this decision in this Court.

2. [45]

   As to the sexual assault allegations of JM, the Tribunal made the following findings:

3. [46]

   With regards to the sexual assault allegations of BE, the Tribunal made the following findings:

4. [47]

   With regards to the allegations that DVR sexually assaulted two girls under the age of 10 years between 2001 and 2002, the Tribunal made the following findings:

5. [48]

   Under the heading ‘Professional conduct findings made against the applicant’, the Tribunal made the following findings:

6. [49]

   Under the heading ‘Suggestion that the applicant may have performed child-related work without holding a working with children check clearance’, the Tribunal made the following findings:

7. [50]

   Under the heading ‘Risk assessment report’ the Tribunal summarised the findings of psychiatrist Dr Olav Nielssen’s risk assessment report:

8. [51]

   Under the heading ‘Conclusion on s 30(1) matters’ the Tribunal made the following findings:

9. [52]

   Under the heading ‘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?’ the tribunal made the following findings:

10. [53]

    Under the heading ‘Is it in the public interest to make the orders sought by the applicant?’ the Tribunal made the following findings:

11. [54]

    It should be noted that paragraph [158] above included the word “not”. I take this to be a typographical error as it is in direct contradiction with the findings in [157], its conclusion at [156] and the orders made.

12. [55]

    The Tribunal made the determination that DVR did not pose a real and appreciable risk to children. It was the Tribunal’s view that the reasonable person would allow his or her child to have direct contact with the defendant that was not directly supervised by another person while the defendant was engaged in child-related work, and that it is in the public interest to make such an order: Tribunal Decision at [165].

The grounds of appeal

1. [56]

   The grounds of Appeal as set out in the summons are as follows:

   1. (1)

      The Tribunal erred at law by misconstruing or misapplying s 18(2) of the WWC Act in that it:

   2. (2)

      The Tribunal erred at law by concluding that it would be a breach of the obligation of procedural fairness owed to the defendant for BE’s statement to be received as evidence of the truth of BE’s allegations: Tribunal’s Decision at [69].

   3. (3)

      The Tribunal erred at law by failing to consider, or failing to give adequate reasons for rejecting, the plaintiff’s submissions that:

   4. (4)

      As a consequence of the errors alleged in Judicial Review grounds 1-3 above, the Tribunal also erred at law by relying on its foregoing reasons when holding that:

2. [57]

   In oral submissions, Counsel for the plaintiff summarised the grounds of appeal (T3.37-5.26). As the defendant agrees with this analysis of the grouping of the judicial grounds, I shall adopt them. I shall briefly explain them here.

3. [58]

   The first key error is that the Tribunal misconstrued the concept of risk under s 18(2) of the WWC Act (Ground 1(a)). Ground 1(b) is related. It is to the extent that the tribunal concluded the allegations were groundless, it erred in doing so. Ground 3 makes the same point but expressed it as a failure to consider a ground or providing inadequate reasons for the ground. It is really the same risk as posed by Ground 3(a) but putting it as a failure to consider ground or an inadequate reasons ground.

4. [59]

   The second key error is that is the tribunal erred in concluding that accepting BE's statements as evidence of their truth would constitute a denial of procedural fairness to the defendant. Ground 2 of the summons is related to 1C. It puts it differently and says “to the extent the Tribunal concluded the allegations were groundless it erred in doing so. This is a kind of back up ground in the sense of what the tribunal did to conclude the allegations were groundless, it erred in doing so but also goes to the risk assessment so it is in essence part of the same error.

5. [60]

   The third error is that the tribunal failed to consider the cumulative weight of JM and BE’s allegations (Ground 3C). It is alleged that the tribunal have taken a siloed approach to each of JM’s and BE’s allegations, rather than considering them as a whole and what, when taken together, this indicates about the possibility of the conduct having occurred and the defendant's risk arising from that. So it's closely allied to the first ground. It's a further demonstration of how the tribunal failed to engage with the key question, that is the risk that's indicated by all of the facts.

6. [61]

   Ground 4 really takes those three errors but says that they also arose at a different stage of the decision‑making process. That is when the questions under s 30(1A) that need to be addressed.

Grounds 1(a)-(b) and 3(a): requiring “positive satisfaction” of the allegations

1. [62]

   As stated above, this group of review grounds is that: firstly, the Tribunal misconstrued the concept of risk under s 18(2) of the WWC Act; secondly, to the extent that the tribunal concluded the allegations were groundless, it erred in doing so; and finally, the Tribunal failed to consider a ground or provided inadequate reasons for its decision.

2. [63]

   The plaintiff submitted that, in respect of JM’s and BE’s allegations, the Tribunal concluded that it was not “satisfied” that the assaults took place, which informed its consideration of the s 30(1) matters, specifically, s 30(1)(a), (c) and (i), of the WWC Act. In coming to its conclusion, the Tribunal failed to turn its mind to the question actually posed by s 18(2) of the WWC Act, which is whether the defendant poses a “risk to the safety of children” that is indicated by all of the facts.

3. [64]

   The authorities suggest that where the safety, welfare and well-being of the child, including protecting them from child abuse, is paramount, and allegations of sexual abuse or other such conduct have been made, and the conduct is neither well founded nor groundless, the Tribunal must still determine whether “by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children.” In other words, even if not “satisfied” that the relevant allegations are made out, the Tribunal must still consider whether or not there is a sufficient possibility that the alleged conduct occurred such as to give rise to a risk to the safety of children.

4. [65]

   It is accepted that this approach will lead to WWCC being refused even where allegations have not been proven. However, as Simpson AJA observed in CXZ at [58]:

5. [66]

   The plaintiff accepts that the allegations of JM and BE are not well founded, however, they are by no means groundless. In the circumstances, the Tribunal was required to consider whether the evidence gave rise to a “risk to the safety of children” but failed to do so. That error alone is a sufficient basis for allowing the appeal.

6. [67]

   In relation to Judicial Ground 1(b), the plaintiff submitted that an alternative construction of the Tribunal’s findings that it found the allegations made by JM and BE to be groundless. To the extent that that is the case, the Tribunal misdirected itself as to what is required for allegations to be groundless, or erred in so holding, because there was no rational basis, having regard to the evidence advanced and the Tribunal’s findings, on which the Tribunal could properly treat JM’s and BE’s allegations as groundless.

7. [68]

   The authorities make clear that not being positively satisfied that that alleged conduct took place is not the same as finding that the allegations are groundless. Where the Tribunal is contemplating rejecting an allegation as groundless, it should have “no hesitation” in doing so. As stated in Children’s Guardian v CF1 [2020] NSWSC 1673 (“Children’s Guardian v CF1”) as per Davies J at [80], cases where an allegation can be dismissed as groundless “are not cases where there is competing evidence which has to be weighed up.”

8. [69]

   In relation to JM, there was considerable evidence before the Tribunal regarding the allegations including evidence of contemporaneous disclosures regarding the alleged abuse (see Tribunal’s decision at [7], [14] to [16]). Some weight ought to have been given to the fact that the Director of Public Prosecutions considered the matter serious enough to charge the defendant, and that NSW Police considered it serious enough to investigate the allegations following which it concluded that “it is more likely than not that [the defendant] did sexually assault JM”: see Tribunal’s Decision at [13].

9. [70]

   In respect of BE, there was also evidence before the Tribunal regarding the allegation including evidence of a contemporaneous disclosure regarding the alleged assault to BE’s mother (see Tribunal’s Decision at [25]). While in respect of BE’s allegations the Tribunal accepted the evidence of the defendant, this does not itself mean that BE’s allegations were groundless. That is only a finding on the balance of probabilities and that leaves considerable scope for the possibility that the allegations were true: See Children’s Guardian v CF1 at [79]. To be satisfied that the defendant did not engage in the conduct alleged, the Tribunal needed to reject BE’s statement as untrue which it could not do in circumstances where BE was not required for cross-examination.

10. [71]

    This was not a case where there was some externally demonstrated fact which would lead to a conclusion of groundlessness (for example, evidence that the defendant was never left alone with JM or BE). In the absence of such objective evidence and having regard to the evidence otherwise before the Tribunal, it was not open to the Tribunal to treat JM’s and BE’s allegations as groundless.

11. [72]

    In relation to Judicial Ground 3(a), the plaintiff submitted that the Tribunal failed to consider, or failed to give adequate reasons for rejecting the plaintiff’s submissions regarding the correct test to be applied in assessing whether a person poses a risk to the safety of children (ie the test enunciated in BKE v Children’s Guardian and affirmed in CXZ v Children’s Guardian). There is no mention in the Tribunal’s reasons of the test in BKE v Children’s Guardian. The Tribunal’s reasons do not expose any evaluation of the risk posed by the defendant to children apart from references to Dr Nielssen’s findings (which also fixate on the assumption that the defendant did not sexually assault JM or BE: see Tribunal’s Decision at [116], [118(2)]);

12. [73]

    The error arising from this failure may be put in several ways. First, the failure to consider a substantial, clearly articulated argument is a denial of natural justice. Secondly, the Tribunal failed to comply with its obligation under section 30(1)(k) of the WWC Act to consider “Any other matters that the Children’s Guardian considers necessary”. Thirdly, the Tribunal failed to comply with its obligation to provide reasons under s 62(3) of the NCAT Act, which amounts to an error of law.

13. [74]

    The first defendant submitted that, pursuant to s 18(2) of the WWC Act, the Tribunal was required to determine if the defendant was a person who poses a risk to the safety of children. That risk is a real and appreciable risk to the safety of children: See s 5B WWC Act.

14. [75]

    In Commissioner for Children and Young People v V [2002] NSWSC 949 (“CCYP v V”) at [42], when considering risk, Young CJ in EQ said:

15. [76]

    The term “real and appreciable risk” has a wider application. For example, it is part of the central question when privilege against self-incrimination is claimed: see Sorby v The Commonwealth (1983) 152 CLR 281 at 294. In Accident Insurance Mutual Holdings v McFadden (1993) 31 NSWLR 412 at 422, in reference to this question Kirby P (as he then was) said:

16. [77]

    In Alfred v Walter Construction Group Ltd [2003] FCA 993, Gyles J said:

17. [78]

    The task of the Tribunal was to answer the question required by the WWC Act. In doing so, the Tribunal was not required to adopt a particular approach. In particular, the Tribunal was not required to adopt the three stage approach that was developed in by His Honour Beech-Jones in BKE v Children’s Guardian at [31]-[33] and endorsed by the Court of Appeal in Tilley v Children’s Guardian.

18. [79]

    The three stage approach is an established, but not mandatory, method to undertake the assessment required by s 18(2). It involves first, a determination of positive findings of whether the relevant allegations are made out, secondly, a determination whether the relevant allegations are groundless, and thirdly, where an allegation is neither made out or groundless, an assessment of risk based on the possibility that an allegation is correct, is not required under s 18(2): Simpson AJA in CXZ v Children’s Guardian at [52], [57].

19. [80]

    The three stage test is not required by and does not supplant s 18(2). As McCallum JA said in CXZ v Children’s Guardian at [28]-[30]:

20. [81]

    In CXZ v Children’s Guardian at [7] Basten JA described what was required of the Tribunal in the following terms:

21. [82]

    The defendant submitted that the Tribunal’s determination that the defendant did not pose a risk to the safety of children was not made solely on the basis that the alleged assaults on JM and BE did not occur. In addition to those significant findings the Tribunal considered the following matters:

22. [83]

    The Tribunal concluded, having considered all of those matters, that the plaintiff does not pose a real and appreciable risk to the safety of children (Tribunal’s at [153]).

23. [84]

    The observations of Her Honour Simpson AJA in CXZ v Children’s Guardian at [83]-[85] are apposite:

24. [85]

    In relation to Judicial Ground 1(b), the defendant submitted that the Tribunal did not make an express finding that the allegations made by JM were groundless. The Tribunal found that the assaults as alleged did not take place (Tribunal’s Decision at [23], [122], [124], [130] and [136]). The Tribunal also referred to the cross-examination of JM in the District Court where she stated that she could not remember a number of essential details of her complaints (Tribunal’s Decision at [10]) and other relevant evidence.

25. [86]

    In the defendant’s submission, the Tribunal did not expressly state that the allegations made by BE were groundless. The Tribunal made a finding that the assaults as alleged did not take place (Tribunal’s Decision at [70], [75], [122], [124] and [140]). The Tribunal also referred to other evidence that exculpates the defendant:

26. [87]

    The Tribunal was required to make a determination as to whether the defendant is a real and appreciable risk to the safety of children. In doing so, the Tribunal was not required to make an assessment that the allegations made by JM and BE were groundless.

27. [88]

    If the Tribunal followed the three stage approach of BKE v Children’s Guardian and Tilley v Children’s Guardian, then it would have been required to determine if the allegations were groundless if they were not substantiated on the balance of probabilities.

28. [89]

    However, the Tribunal adopted a much broader approach. In addition to the evidence concerning the allegations made by JM and BE, the Tribunal also had before it:

29. [90]

    To the extent that there was some evidence to support the JM and BE allegations, the Tribunal was required to consider whether the other evidence before it considered the question of whether the defendant did not pose a real and appreciable risk to the safety of children. That included the uncontradicted expert evidence of Dr Nielssen.

30. [91]

    In CXZ v Children’s Guardian, there was no express finding that any of the allegations were groundless. Clearly no such finding was required to be made in the present case.

31. [92]

    In relation to Judicial Ground 3, the defendant submitted that this point of appeal is inconsistent with the case put by the plaintiff before the Tribunal.

32. [93]

    In the plaintiff’s further written submissions to the Tribunal (Ex A(2), 960), the contention made in their earlier submissions, that there was a three-step process in applying s 18(2) was withdrawn. Those submissions at [30] relevantly stated:

33. [94]

    In response, the defendant’s further submissions said at [2] (Ex A(2), 963):

34. [95]

    The Tribunal apprehended, based upon the submissions of Counsel for both parties, that there was no dispute that what they should ultimately consider is whether the defendant poses a risk to the safety of children.

35. [96]

    In reply, the plaintiff submitted that while it is accepted that judicial statements as to the meaning or purpose of an Act must never be allowed to supplant or supersede its proper construction, a court cannot approach a statute by ignoring previous decisions on the interpretation of its provisions “to arrive at [its] own judgment as though the pages of the law reports were blank”: see McNamara v Consumer Trade & Tenancy Tribunal (2005) 221 CLR 646 at [42]. The rules of precedent apply in cases of statutory interpretation, and the Tribunal should have regard to previous decisions construing the relevant provision at issue.

36. [97]

    In the plaintiff’s submission, the defendant points to several matters the Tribunal considered and submits that the Tribunal’s determination was not made solely on the basis that the alleged assaults on JM and BE did not occur. However:

37. [98]

    Finally, the plaintiff submitted that the decision of CXZ is distinguishable. Unlike this case, in CXZ the Tribunal engaged with the possibility that at least some of the subject allegations occurred including in the context of its consideration of the s 30(1)(a) matters. In this case, in circumstances in which the Tribunal concluded that it was not “satisfied” that the assaults against JM and BE took place, it did not engage with the risk posed by them.

38. [99]

    The issue comprised within these grounds is essentially whether the Tribunal misconstrued the concept of risk under s 18(2) of the WWC Act and in doing so erred in law.

39. [100]

    Section 18(2) provides that 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. It is the means of assessing whether “the person poses a risk to the safety of children” that is the central question here.

40. [101]

    In CXZ v Children’s Guardian, Her Honour Simpson AJA stated at [57] that what is required of the Tribunal under s 18(2), is to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the defendant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. In that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.

41. [102]

    It is accepted that this approach will lead to WWCC being refused even where allegations have not been proven. As Simpson AJA observed in CXZ at [58], a person entirely innocent of any allegations may be refused a WWCC because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Her Honour was satisfied that the WWC Act preferred the risk of injustice to an applicant to risk to the safety of children.

42. [103]

    In these grounds of Judicial Review, the plaintiff firstly contends that the Tribunal proceeded on the basis that it could not be satisfied that the defendant posed a risk to the safety of children within s 18(2) unless it was positively satisfied that the alleged assaults against JM and BE took place. Secondly, the plaintiff contends that while the allegations of JM and BE are not well founded, they are by no means groundless and in these circumstances, the Tribunal was required to consider whether the evidence gave rise to a “risk to the safety of children” but failed to do so.

43. [104]

    So far as the plaintiff’s contention as to whether the Tribunal erred in finding that the allegations of JM and BE were groundless is concerned, the authorities are quite clear. To find error on this basis would be to elevate the judge-approved method for assessing risk to a set of hardened rules to the application of which, if care is not taken, will supplant the statutory test: see CXZ v Children’s Guardian as per McCallum JA at [28]-[30]. As stated above, the test posed by the statute is whether the defendant poses a risk to the safety of children. Further, when considering this test, the Tribunal was entitled to make discretionary decisions on the strength or weaknesses of evidence before them and it is not for this Court to make determinations regarding the merits of a decision of this nature.

44. [105]

    As to whether DVR posed a risk to the safety of Children under s 18(2), the Tribunal firstly considered the allegations that DVR sexually assaulted two girls under the age of 10 between 2001 and 2002. In relation to these allegations, the Tribunal found that given the lack of evidence before them and DVR’s sworn denial of the allegations, that they could not be satisfied that the sexual assaults occurred (Tribunal’s Decision at [78]). These allegations were not referred to again until the s 30 considerations were addressed, and it might be concluded that the Tribunal considered these allegations as ‘groundless’, as they were entitled to do so, and excluded them from further consideration.

45. [106]

    In relation to the allegations of JM the Tribunal found at [23] that on the evidence before them they could not be satisfied that the alleged conduct occurred. In relation to the allegations of BE, the Tribunal found at [70] that they were positively satisfied that the sexual assault alleged did not occur.

46. [107]

    At the hearing, Counsel for the defendant conceded that the allegations of JM would fall within the “intermediate category” (T32.42-33.5). Again, the ‘intermediate category’ of allegations are those which are between the two extremes of ‘groundless’ or ‘made out’. With regards to the allegations of BE, the counsel for the defendant submitted that as the Tribunal were ‘positively satisfied’ (Tribunal’s Decision at [140]) that the allegations did not occur, and as such this fell within the category of ‘groundless’ allegations that could be excluded from consideration (T33.5-12).

47. [108]

    Therefore, at the very least, the Tribunal was required, in determining whether DVR posed a risk to the safety of children, to consider the ‘possibility’ that the conduct alleged by JM occurred and the risk that might arise from that. Nowhere in the Tribunal’s decision do they set out the test approved by Simpson AJA in CXZ v Children’s Guardian (at [57]) and apply the allegations of JM to this test.

48. [109]

    It is the defendant’s submission that the Tribunal did consider the risk having regard to the possibility that the allegations occurred as the Tribunal had before them the risk assessment report of psychologist Dr Nielssen who also provided oral evidence before the Tribunal. At [115] of their decision, the Tribunal state that Dr Nielssen did not identify any features of the defendant’s clinical history or presentation to indicate any risk of harm to children who might be placed in his care. At [130], the Tribunal stated that they accept the opinion of Dr Nielssen that the probability of sexual offending declines with age and that, even if the defendant had been guilty of the offences, his risk of reoffending would be very low.

49. [110]

    However, in my view, Dr Nielssen’s risk assessment report is centred around the proposition that DVR did not engage in the alleged conduct. This is evident at [118] where Dr Nielssen states that given the investigations and trial did not confirm that that DVR sexually assaulted the complainants, his past behaviour is no guide to future conduct. Furthermore, at [119] Dr Nielssen is quoted by the Tribunal as stating that “[w]ith regards to the application of actuarial instruments to estimate the probability of sexual offending, the instruments that are available, such as Static 99R, Sonar and RSVP, are administered on the assumption that the person who is the subject of the risk assessment has committed a sexual offence, in most cases a contact sexual offence. Hence, they are not relevant in the assessment of the probability that DVR might commit any kind of offence against children in the future, as he has never been found to have committed an offence.” This suggests that the instruments used to assess the risk that DVR posed to the safety of children were not considered as applicable and were not utilised as Dr Nielssen proceeded on the basis that the allegations did not occur.

50. [111]

    In any event, even if the Tribunal was of the view that DVR did not pose a real and appreciable risk to the safety of children when the possibility of the allegations of JM occurring were considered, it was required by law to set out the correct test and explain its path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (“Wingfoot”) at [55].

51. [112]

    In my view, the Tribunal failed to apply the correct test when assessing the risk that the defendant posed to the safety of Children in apply for a WWCC under s 18(2) of the WWC Act and failed to set out sufficient reasons for their decision. This constitutes an error of law on the face of the record.

Grounds 1(c), 2 and 3(b): error in refusing to accept BE’s statement as evidence of the truth of her allegations

1. [113]

   This group of grounds of judicial review allege that the Tribunal erred in concluding that accepting BE's statements as evidence of their truth would constitute a denial of procedural fairness to the defendant. Alternatively, it is argued that Tribunal’s approach to BE’s allegations is that it simply concluded the allegations were untrue. To the extent that it did so, the Tribunal could not have been so satisfied in circumstances where BE was not cross-examined, and the defendant ultimately did not seek an order requiring BE to attend for cross-examination. This ground is also expressed as a failure to provide reasons for making this decision.

2. [114]

   The plaintiff submitted that, at [69] of their decision, the Tribunal concluded that as BE had not been made available to be cross-examined in relation to her allegations, it would be a breach of procedural fairness to the defendant for the Tribunal to accept BE’s statement as evidence of the truth of her allegations. The plaintiff submitted that the conclusion made by the Tribunal was in error.

3. [115]

   As stated in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 at [137], procedural fairness does not always require “the rejection or giving of no weight to evidence which cannot be tested by cross-examination”. In CF1 v Children’s Guardian, where no order was sought requiring the maker of an “unsigned and untested” statement to attend for cross-examination, the Court concluded that it was not open to the Tribunal to give negligible weight to the statement, concluding that that would be “a denial of procedural fairness to the Children’s Guardian.”

4. [116]

   The plaintiff drew attention to where the Tribunal referred to the decision in Children’s Guardian v BRL. This case concerned an application for a WWCC. The Children’s Guardian tendered four police statements made in 1998 that formed part of a case for prosecution of BRL for charges of sexual intercourse with a child between 10 and 16 years of age. The deponents of the statements were not made available for cross-examination. The Tribunal received the statements as evidence only of the fact that the allegations had been made, on the basis that receiving them as evidence of the truth of the allegations would amount to a denial of procedural fairness to the defendant (Tribunal’s Decision at [22]-[23]). That conclusion was upheld on the appeal.

5. [117]

   The Court acknowledged, however, that “it would have been open to the Tribunal to take the statements as evidence of the facts asserted in them but this would be subject to consideration of how much weight should be attached in circumstances where they [were] not tested”. The reason why the Court concluded there was no error in the Tribunal’s approach depended upon the particular facts of that case: which included the fact that the Children’s Guardian had not contacted the witnesses to ascertain their willingness to give evidence but also the fact that no explanation had been provided as to why the witnesses were not willing to give evidence at the criminal trial (Tribunal’s Decision at [24]-[26]).

6. [118]

   In the plaintiff’s submission, Children’s Guardian v BRL is distinguishable, or alternatively should not be followed. While the defendant initially requested that BE be made available for cross-examination, that request was not pressed at the hearing (Tribunal’s Decision at [67]). Unlike Children’s Guardian v BRL, there had been no prosecution of the defendant in respect of the allegations and no need to investigate why the complainant had previously been unwilling to give evidence at trial.

7. [119]

   In the context of WWCC proceedings, there should be no inflexible requirement to call or contact witnesses in respect of historical allegations. Again, regard should be had to the nature of the Tribunal’s exercise, which is to determine whether there is a “risk to the safety of children”, not whether it is positively satisfied that the relevant allegations have been made out. The special nature of WWCC proceedings was recognised in CXZ v Children’s Guardian at [16]:

8. [120]

   It would be an unnecessarily onerous task for both the Children’s Guardian and the Tribunal to require for cross-examination any historical complainant whose allegations are the subject of a risk assessment for a WWCC. That is especially so in circumstances where, as here:

9. [121]

   These are matters which were canvassed in the plaintiff’s submissions before the Tribunal which do not appear to have been considered by the Tribunal.

10. [122]

    The plaintiff submitted that, in the circumstances, it was not available to the Tribunal to conclude that it would be a breach of procedural fairness to the defendant for the Tribunal to accept BE’s statement as evidence of the truth of her allegations.

11. [123]

    In relation to Judicial Ground (1)(c), the plaintiff submitted that an alternative reading of the Tribunal’s approach to BE’s allegations is that it simply concluded the allegations were untrue. To the extent that it did so, the Tribunal could not have been so satisfied in circumstances where BE was not cross-examined, and the defendant ultimately did not seek an order requiring BE to attend for cross-examination.

12. [124]

    In the absence of cross-examination, a Tribunal is unable to test the veracity of a witness’s statement. It follows that a Tribunal cannot reject a witness’ statement as untrue in those circumstances. In CF1 v Children’s Guardian, the Court concluded that it was not open to the Tribunal in the circumstances to give an “unsigned and untested” statement “negligible weight” (as per Davies J at [62], [75]). In the absence of cross-examination, the correct approach was simply to weigh up BE’s statement against the other available evidence, but that is not the approach the Tribunal adopted, and in doing so, it fell into error.

13. [125]

    In relation to Judicial Ground 3(b), the plaintiff submitted that the Tribunal failed to consider, or failed to give adequate reasons for rejecting the plaintiff’s submissions regarding receiving BE’s statement as evidence of the truth of BE’s allegations would not breach the obligation of procedural fairness owed to the defendant. Apart from a reference to Children’s Guardian v BRL [2016] NSWSC 1206 (“Children’s Guardian v BRL”) (at [69]), there is no analysis of the obligation of procedural fairness owed to the defendant or the reasoning process that led the Tribunal to the conclusions it made on this issue.

14. [126]

    The plaintiff submits that the Tribunal did not provide adequate reasoning for its actual conclusion that accepting BE’s statement would deny procedural fairness to the defendant. In the circumstances, the statement of reasons has failed to “explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”: see Wingfoot at [55].

15. [127]

    The defendant referred to the Tribunal’s decision and noted that in making the finding that the defendant did not sexually assault BE as alleged the Tribunal considered the following evidence:

16. [128]

    The defendant submitted that it is unsurprising that the Tribunal came to the conclusion that the BE allegations did not occur. The NSW Police Force Investigator’s Report made the same finding.

17. [129]

    The defendant further submitted that this point of appeal is at odds with the case asserted by the plaintiff before the Tribunal. The plaintiff conceded that the defendant had given many months notice of their request for BE to be available for cross-examination (plaintiff’s further submissions to the Tribunal at [17], Ex A(2), 955) but maintained a policy position against this request (Tribunal’s Decision at [67]). Had the plaintiff wanted to rely upon BE’s evidence at its highest, they could have taken a different approach.

18. [130]

    In the defendant’s submission, refusing to accept the truth of allegations made in the statement of BE was but one of the options available to the Tribunal. In addressing this issue in Children’s Guardian v BRL at [23] – [28] where Fagan J said:

19. [131]

    The parallels between Children’s Guardian v BRL and the present case are clear. The plaintiff has made a policy decision not to call a witness who has made extremely serious allegations, and yet assert that their evidence has some probative value. At the relevant time that witness was an adult. The plaintiff conceded that there is no evidence that BE was unavailable or unwilling to attend (plaintiff’s submissions to the Tribunal at [97], Ex A(1) 334-335).

20. [132]

    It was open to the Tribunal in applying Children’s Guardian v BRL to either: refuse to consider BE’s statement as evidence of the truth of its contents; or admit BE’s statement as evidence of the truth of its contents but give it negligible weight.

21. [133]

    As Fagan J said in Children’s Guardian v BRL at [30]:

22. [134]

    The plaintiff seeks to make a policy-based argument that the plaintiff be relieved of the obligation to make witnesses available for cross-examination (plaintiff’s submissions at [58]). Those submissions should not be accepted.

23. [135]

    The defendant submitted that the approach set out by Fagan J in Children’s Guardian v BRL does not mandate that a complainant be available in every case. His Honour indicates that enquiries should be made as to the willingness of a complainant to give evidence and where a complainant is unwilling, an explanation provided to the Tribunal: See Children’s Guardian v BRL at [58].

24. [136]

    The approach taken by Fagan J allows the admission of statements where the maker is unavailable for cross-examination, subject to weight. This emphasises the responsibilities of the plaintiff as a statutory office holder and as a model litigant. This approach is consistent with the severe consequences that may flow from the denial of a WWCC. An individual may lose their employment or business. They may be forced to change career. They or their partner may cease acting as a carer, including to family members. The risk of injustice in those severe consequences is ameliorated by enabling serious allegations to be properly tested.

25. [137]

    The defendant submitted that the Tribunal refused to receive BE’s statement as evidence of the truth of her allegations on the basis of Children’s Guardian v BRL, an authority cited in detail in the plaintiff’s submissions to the Tribunal at [108]–[110] and on the basis of related submissions made by the plaintiff.

26. [138]

    The defendant drew attention to where the plaintiff stated in those submissions at [98]:

27. [139]

    The plaintiff also drew the Tribunal’s attention to CCYP v FZ, which was considered and applied by Fagan J in Children’s Guardian v BRL.

28. [140]

    The plaintiff then sought to argue that: the actual evidence of BE was not significant and that it was appropriate for the Tribunal to accord that evidence less weight: see plaintiff’s submissions at [105]-[107]; the actual evidence of BE was not significant and that it was appropriate for the Tribunal to accord that evidence less weight: see plaintiff’s submissions at [105]-[107]); the case could be distinguished from CCYP v FZ and Children’s Guardian v BRL; and they should be relieved from obligations of procedural fairness on policy grounds.

29. [141]

    To the contrary: the allegations made by BE were of great significance; CCYP v FZ and Children’s Guardian v BRL could not be distinguished, the Tribunal was obliged to apply them; and the policy argument did not address the requirement for the Tribunal to apply CCYP v FZ and Children’s Guardian v BRL.

30. [142]

    The reasons provided by the Tribunal in relation to BE’s statement (Tribunal’s Decision at [67]-[69]) met the requirements in s 62(3) of the NCAT Act. They did not need to be more extensive. In Wingfoot the High Court at [55]-[56] said:

31. [143]

    In applying Wingfoot, in CGR v Office of Children’s Guardian [2018] NSWSC 26 at [41], Lonergan J said:

32. [144]

    The central contention of these grounds of appeal is that the Tribunal fell into error by concluding that accepting BE's statements as evidence of their truth would constitute a denial of procedural fairness to the defendant. Alternatively, it argued that the Tribunal’s approach to BE’s allegations is that it simply concluded the allegations were untrue and to the extent that it did so, the Tribunal could not have been so satisfied in circumstances where BE was not cross-examined. This alleged error is also expressed as a failure to provide reasons for making this decision.

33. [145]

    The plaintiff submitted that while the defendant initially requested that BE be made available for cross-examination, that request was not pressed at the hearing (Tribunal Decision at [67]). Further it would be an unnecessarily onerous task for both the Children’s Guardian and the Tribunal to require for cross-examination any historical complainant whose allegations are the subject of a risk assessment for a WWCC. Alternatively, the plaintiff submitted of the Tribunal’s approach to BE’s allegations is that it simply concluded the allegations were untrue. To the extent that it did so, the Tribunal could not have been so satisfied in circumstances where BE was not cross-examined, and the defendant ultimately did not seek an order requiring BE to attend for cross-examination

34. [146]

    The defendant submitted that, in accordance with the decision in BRL, it was open to the Tribunal to either: refuse to consider BE’s statement as evidence of the truth of it’s contents; or admit BE’s statement as evidence of the truth of it’s contents but give it negligible weight. The Tribunal refers to the decision of Children’s Guardian v BRL at [69] of their decision and was therefore aware of these principles.

35. [147]

    The plaintiff’s argument that the factual circumstances of Children’s Guardian v BRL can be distinguished to these proceedings. In my view, the principles established by Fagan J in Children’s Guardian v BRL are of wide import and applies to cases such as this.

36. [148]

    The Tribunal noted the circumstances surrounding BE’s allegations. At [67] they noted that the defendant requested for BE to be made available for cross-examination and the request was declined, with Counsel for the Children’s Guardian in the hearing before the Tribunal submitting that it is the Children Guardian’s approach not to make complainants available to be evidence in proceedings. At [68], the Tribunal notes that BE, despite being 14 years old at the time of the complaint, was no longer a child when the proceedings commenced. The Tribunal considered various other pieces of contextual evidence surrounding the BE allegations, including the internal Police Force investigations. It was on this basis that the Tribunal decided not to accept BE’s statement as evidence of the truth of her allegations. I do not accept the plaintiff’s submission that due to a policy decision made on behalf of the Children’s Guardian, it was the obligation of the defendant to press his request to have BE cross-examined. While I understand that plaintiff’s policy decision, it may result in procedural unfairness to the defendant. It should not be a blanket view if the plaintiff seeks to challenge the Tribunal’s findings on its approach to the evidence.

37. [149]

    In my view, it was open to the Tribunal to decide, considering the factual circumstances and in consideration of the principles of Children’s Guardian v BRL, accepting BE's statements as evidence of their truth would constitute a denial of procedural fairness to the defendant. By outlining the circumstances surrounding BE’s statement, it is my view that the Tribunal discharged of their duty and did not disclose of path of reasoning as per Wingfoot at [55]. Judicial Grounds 1(c) and 2 fail.

Ground 3(c): Tribunal failed to consider cumulative weight of evidence

1. [150]

   This ground was briefly addressed in the parties’ submissions with further clarity provided by the oral submissions at the hearing. It is the plaintiff’s contention that the tribunal failed to consider the cumulative weight of JM and BE’s allegations. It is submitted by the plaintiff that the tribunal have taken a siloed approach to each of JM’s and BE’s allegations rather than considering them as a whole and what them, taken together, indicated about the possibility of the conduct having occurred and the defendant's risk arising from that. This ground is also expressed as a failure to provide reasons for making this decision.

2. [151]

   At the hearing, when the issue was raised as to whether failing to consider the cumulative weight of the evidence constituted an error of law, Counsel for the plaintiff referred to the decision of Children’s Guardian v CXZ [2019] NSWSC 1083, where Walton J stated at [293] that the Children’s Guardian was correct to submit that the Tribunal did not expressly or impliedly evaluated the accumulated weight of the evidence of the allegations when assessing the risk (T28.1-42). Counsel submitted that while Walton J’s decision was overruled on Appeal (in CXZ v Children’s Guardian, referred to throughout this Judgment), the Court of Appeal did not say anything in disapproval of the concept that a siloed approach should not be adopted (T29.10-11).

3. [152]

   In CXZ v Children’s Guardian, Simpson AJA stated at [79]

4. [153]

   However, in my view, this was not the issue that was before the Court of Appeal in CXZ v Children’s Guardian and without express reference to this concept, it cannot be said that the Court of Appeal’s silence is authority for failing to consider the cumulative weight of evidence as constituting an error of law. In any event, If I am wrong, I will consider the parties submissions on this issue.

5. [154]

   In relation to Judicial Ground 3(C), the plaintiff submitted that the Tribunal failed to consider, or failed to give adequate reasons for rejecting the plaintiff’s submissions regarding the significance that should be given to the cumulative weight of JM’s and BE’s allegations. There was no consideration of how BE’s allegations may have reinforced the credibility of JM’s allegations or vice versa.

6. [155]

   At the hearing, Counsel for the plaintiff provided further arguments in relation to this ground (T28.4-8):

7. [156]

   The defendant submitted that the Tribunal did not fail to consider the cumulative weight of JM’s and BE’s allegations. This is a matter that was expressly set in the NSW Police Force Investigator’s Report (Tribunal’s Decision at [91]) as well as the plaintiff’s submissions (plaintiff’s further submissions to the Tribunal at [3] (Ex A(2) 950)). Those matters were addressed by the Tribunal (Tribunal’s Decision at [144]). In essence, JE was not a credible witness because she failed to remember essential details of her complaints in giving evidence before the District Court. In contrast, the defendant was found to be a credible witness having been cross-examined in both the District Court and the Tribunal. The reasons given by the Tribunal were consistent with their obligations under s62(3) of the NCAT Act and with Wingfoot.

8. [157]

   Counsel for the defendant in oral submissions also provided further submissions on this topic (T44.13-45):

9. [158]

   The defendant submitted that the Tribunal did consider the cumulative weight of JM’s and BE’s allegations, relying on the Tribunal’s extract from the NSW Police Force Investigator’s Report that “[JM] and [BE] both made allegations of sexual assault and both [JM] and [BE] were of similar age when the assaults are alleged to have occurred”: Tribunal’s Decision at [91]. The Tribunal’s recitation of this content without more hardly constitutes consideration of the cumulative weight of JM’s and BE’s allegations; it did not engage in an “active intellectual process” on that topic. The defendant also refers to the Tribunal’s Decision at [144]. There the Tribunal concluded that it could not find on the balance of probabilities that the assault against JM occurred. It did not consider how the existence of two, similar, allegations affected the assessment of the defendant’s risk.

10. [159]

    The argument made before the Tribunal was, which is again argued before this Court, that the Tribunal failed to consider the cumulative weight of JM and BE’s allegations.

11. [160]

    This issue is directly considered by the NSW Police Force Investigator’s Report dated 21 August 2017, which was reproduced in the Tribunal’s decision at [91]. In this report, the Investigator noted that the two known females who have been alone with the defendant, JM and BE, both made allegations of sexual assault and both were of similar age when the assaults are alleged to have occurred. The investigator noted that no sustained findings were made against DVR in relation to the BE matter due to, largely, a lack of corroborative evidence. However, critically, the investigator stated that the fact remains that BE had made an allegation of sexual misconduct consistent with the allegations of JM. In my view, I am satisfied that the Tribunal considered the cumulative weight of the allegations of JM and BE.

12. [161]

    As this information was before the Tribunal, who reproduced it in their decision at [91], I am also satisfied that the Tribunal considered the cumulative weight of the allegations of JM and BE when making their assessment of the evidence. When the Tribunal’s reasons are read fairly and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]) and without “an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287), the Tribunal has deposed of its obligation to provide reasons. Judicial Ground 3(c) fails.

Ground 4: errors infected application of s 30(1A) matters

1. [162]

   Judicial Ground 4 is that as a consequence of the errors alleged, the Tribunal also erred at law by relying on its foregoing reasons when holding that:

2. [163]

   Ground 4 really takes the above-mentioned errors and alleges that they also arose at a different stage of the decision‑making process, where the s 30(1A) considerations are addressed.

3. [164]

   The plaintiff submitted that the errors in the Tribunal’s analysis outlined above and submitted also infected its conclusions on the matters set out in s 30(1A) of the WWC Act.

4. [165]

   At [156] of its reasons, the Tribunal stated that the information a reasonable person would have to properly consider under the test in s 30(1A)(a) of the WWC Act is “all the evidence before us, as considered above”. At [157] of the Tribunal’s decision, they referred to a number of matters to which a reasonable person would have regard, none of which include the similar nature of the allegations made by JM or BE, or any contemporaneous disclosures of the alleged assaults and all of which supported its conclusion that it could not be satisfied that the alleged conduct occurred. At [158] of its decision, the Tribunal concluded that it was satisfied that a reasonable person would allow their child to have direct, unsupervised contact with the defendant whilst he is engaged in child-related work having regard to the material before it and for the reasons “set out above”.

5. [166]

   At [163] of its decision, the Tribunal concluded, for the reasons “set out above”, that it was not satisfied that the defendant poses a risk to the safety of children and that having regard to the material before it, it was satisfied for the purposes of section 30(1A)(b) that it is in the public interest to make the orders sought by the defendant.

6. [167]

   The plaintiff submitted that, in both cases, the Tribunal appears to have adopted its earlier reasoning regarding the risk posed by the defendant, including its conclusion that it was “not satisfied” that the defendant had engaged in the alleged conduct towards JM and BE. Both conclusions are therefore affected by the errors outlined above.

7. [168]

   The defendant submitted that there being no errors in the Tribunal’s reasoning, as asserted in Appeal Grounds 1–3, there was no error on the part of the Tribunal.

8. [169]

   The Tribunal referred to all of the evidence. In addition to that, the Tribunal expressly referred to eight separate matters that supported the finding that the defendant was not a risk to children (Tribunal’s Decision at [157]). That evidence would, in the mind of a reasonable person, more than overcome the evidence of JM and BE.

9. [170]

   The plaintiff has not identified any errors in the authorities cited by the Tribunal. The decision in relation to public interest was a rational application of the findings made by the Tribunal to those principles.

10. [171]

    The central contention of this ground of Judicial Review is that, by making the errors alleged in grounds 1-3, the Tribunal erred by deciding that a reasonable person would allow his or her child to have direct, unsupervised contact with the defendant while the defendant is engaged in child-related work and it was in the public interest to make the orders sought by the defendant.

11. [172]

    The Tribunal, in addressing these considerations, relied upon their earlier reasons at [158] and [163]. Having established that the Tribunal made the errors alleged in Judicial Ground 1(a), it is consequent that the Tribunal’s application of s 30(1A) was infected by this error. As such, I find that the Tribunal has made an error of law on the face of the record in relation to these Judicial Grounds.

Result

1. [173]

   The result the Tribunal have made the errors of law on the face of the record alleged in Judicial Grounds 1(a) and 4. The Tribunal’s decision dated 30 July 2021 is set aside. The proceedings are remitted back to the President of the NSW Civil and Administrative Tribunal for determination according to law.

Costs

1. [174]

   Costs are discretionary. Costs generally follow the event. The defendant is to pay the plaintiff’s costs.

   1. (1)

      The NSW Civil and Administrative Tribunal’s decision in proceedings DVR v Children’s Guardian [2021] NSWCATAD 223 dated 30 July 2021 is set aside.

   2. (2)

      The proceedings are remitted back to the President of the NSW Civil and Administrative Tribunal for determination according to law.

   3. (3)

      The defendant is to pay the plaintiff’s costs.