BH v Commission, New South Wales Commission for Children and Young People [2002] NSWADT 199 (10 October 2002)

Last Updated: 17 October 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: BH v Commission, New South Wales Commission for Children and Young People [2002] NSWADT 199

PARTIES: APPLICANT

BH

RESPONDENT

Commission, New South Wales Commission for Children and Young People

FILE NUMBERS: 020412

HEARING DATES: 06/08/02

SUBMISSIONS CLOSED: 27/08/2002

DECISION DATE: 10/10/2002

BEFORE: Kelly T (Deputy President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Child Protection (Prohibited Employment) Act 1998

CASES CITED: L v Commission for Children and Young People (2001) NSWIRComm 134

R v Commission for Children and Young People (2002) NSWIRComm 101

Briginshaw v Briginshaw (1938) 60 CLR 361-362

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal Matter

APPLICANT REPRESENTATIVE: APPLICANT

by his parents

RESPONDENT REPRESENTATIVE: RESPONDENT

I Burke barrister

ORDERS: 1. The Child Protection (Prohibited Employment) Act 1998 does not apply to BH in respect of the offence of "indecent assault" which he committed on 31 October 1994 and was convicted on 19 January 1995.

Reasons for Decision:

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, 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.

Introduction

1 The applicant who is now 26 years of age has a conviction for a sexual offence within the meaning of the Child Protection (Prohibited Employment) Act 1998 , incurred in 1996 when he was 18 years of age. As a consequence he is prohibited by the Act from engaging in child related employment unless the tribunal declares otherwise. The applicant now seeks such a declaration in respect of his voluntary work as youth worker in a country town as well as to apply for paid employment in that field. The statutory respondent to such applications, the Commission for Children and Young People, does not oppose the declaration provided certain conditions are attached to any such declaration. These proposed conditions are set out in paragraph 5 hereunder.

Issues

2 There are three questions that must be answered in order for the Tribunal to determine whether a declaration should be granted. These are:

a) Is BH a prohibited person within the meaning of s. 5 of the Act?

b) Does BH pose a risk to the safety of children taking into account the provisions of s. 9(5) of the Act?

c) Should any conditions attach to any declaration the tribunal makes in favour of the applicant?

The offence

3 The offence of indecent assault was committed on 31 October 1994 when the applicant, who was then aged eighteen years threatened and assaulted a nineteen year old woman who was taking a short cut through a cemetery near to where he lived. He made her lie on the ground, covered her face with his hand and touched her back and buttocks and kissed her face and attempted to put a necktie in her mouth. He kissed her on the mouth and neck and released her. There is no evidence that the applicant caused or intended to cause any physical injury to the victim although there can be no doubt that his actions caused her great distress.

4 The applicant was sentenced in the Local Court on 19 January 1995 to nine months weekend detention and on appeal, the District Court on 1 March 1995 ordered the applicant to enter a recognisance to be of good behaviour for four years and accept the supervision of the Probation Service and to accept psychotherapy.

5 The respondent submitted that any declaration should be subject to the following conditions:

a) he is to abstain from the use of alcohol and illegal drugs or other substances for a period of 2 years,

b) he is to provide a report or letter by the last day of each calendar month to the Commission for Children and Young People commenting on his apparent abstinence from alcoholic and other illegal drugs or substances,

c) a report is to be written by a counsellor, church minister or other designated professional who has been agreed to by the applicant and the respondent,

d) the applicant is to obtain the written agreement of the agreed person to provide a monthly report by the stated time. A copy of the written agreement is to be provided to the Commission.

e) if the agreed person is unable o continue to provide a monthly report, the applicant is to nominate and negotiate with the respondent as to some other agreed person,

f) the Commission to be granted permission to list the matter on seven days notice, if there is a breach of the conditions of this order or if there is an inability to agree

g) the condition attached to this order shall expire at the end of the two year period unless ordered by the Tribunal.

Legislative provisions

6 In summary, the Act makes it an offence for people convicted of "serious sex offences" to apply for or undertake "child related employment." The Act also makes it an offence for employers to do certain things in relation to a person convicted of such an offence. However, the Tribunal can make a declaration that the Act is not to apply to a person in relation to a specified offence. Further details are set out below.

7 Subject to certain defences and transitional provisions, the Act makes it an offence for a person convicted of a " serious sex offence" (as defined in s 5(3)) from applying for, undertaking or remaining in child-related employment.

Section 6(1) states that:

A prohibited person must not:

(a) apply for child-related employment, or

(b) undertake child-related employment, or

(c) remain in child-related employment.

Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both.

(2) Defence

It is a defence to a prosecution for an offence against this section if the defendant establishes that he or she did not know, at the time of the commission of the offence, that the employment concerned was child-related employment.

8 A "prohibited person" is defined in s 5 of the Act. That section states that:

(1) For the purposes of this Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of this subsection.

(2) For the purposes of this Act, a person is not a prohibited person in respect of an offence if an order in force under section 9 declares that this Act is not to apply to the person in respect of the offence.

9 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) of the Act .There is no dispute in this case that the offence of indecent assault for which BH has been convicted on 19 January 1995 is a "serious sex offence" or that BH is "a prohibited person".

10 "Child" and "Child-related employment" are defined in s 3:

11 "Employment" is defined in s 3 as follows:

"employment" means (subject to the regulations):

(a) performance of work under a contract of employment, or

(b) performance of work as a self-employed person or as a subcontractor, or

(c) performance of work as a volunteer for an organisation, or

(d) undertaking practical training as part of an educational or vocational course, or

(e) performance of work as a minister of religion or other member of a religious organisation.

12 Subject to certain transitional provisions, the Act also makes it an offence for an employer to do certain things including knowingly employing a prohibited person in child related employment.

13 Section 9 of the Act allows the Tribunal to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that sections states that:

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.

(2) A relevant tribunal is:

(a) the Industrial Relations Commission, or

(b) the Administrative Decisions Tribunal.

(4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.

(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:

a) the seriousness of the offences with respect to which the person is a prohibited person,

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person's total criminal record,

(f) such other matters as the tribunal considers relevant.

(6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.

(7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.

(9) Orders under this section may be made subject to conditions.

(10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order.

Confidentiality

14 In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of (Administrative Decisions Tribunal Act 1997 s 126(1)).

15 Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we have decided, because of the sensitivity of the information in this case, not to publish the applicant's name and to delete any other information which could lead to his identification. In these reasons we refer to the applicant as "BH." The official copy of the orders provided to the parties includes the name of the applicant.

Expert evidence

16 The respondent caused the applicant to be examined by Dr Christopher Lennings, a psychologist who provided a detailed report which included a comprehensive history which is summarised as follows:

a) The applicant was adopted at age 20 months. His biological parents who were only teenagers at the time of his birth were living marginalised and substance-abusing lives and had minimal parenting skills. His adoptive parents have a biological daughter four years older than the applicant and a good relationship exists between the two of them. The applicant credits that when his sister informed him that she was pregnant and that she wanted him to be the uncle of her child he snapped out of his dysfunctional lifestyle and precipitated his change for the better.

b) Dr Lennings also stated that the applicant was diagnosed with attention deficit disorder at the age of 4 years. He has maintained good contact with his adoptive parents throughout his life. At the age of 17 he attempted a reconciliation with his biological mother. This contact appears to have been disastrous for his emotional development and ultimately resulted in his rejection by his biological mother a few weeks before the offence. He had difficulties at school which were primarily centred around rule-breaking and mildly oppositional and attention-seeking behaviour rather than delinquency.

c) From 1995 the applicant was involved in various rehabilitation and religious activities and attempted a religious-based retreat for a year before he was expelled from there for lying because he had broken a valve on a water tower and fearing expulsion had not owned up. He then sought entry into a rural based rehabilitation programme where he remained for thirteen months when he finished the programme, from which it appears, he benefited greatly.

d) After the applicant moved to the rural region where he now lives he gained a labourer's job for three years. He ceased this work 18 months ago and has been endeavouring to work with young people to "give back" because of his experience of his own difficulties.

e) He began using alcohol at about the age of fourteen years and to drink in earnest from about the age of sixteen years when he resumed contact with his biological mother. He had a pattern of heavy binge drinking until the age of 23 years. At the time he was abusing alcohol he also regularly abused marijuana and experimented with stimulant drugs. Both his biological parents had a history of substance abuse and it is likely that he has a genetic loading for substance abuse.

f) At the time of the offence the applicant's intense arousal (a combination of fear and anger) suggests strong psychological factors but did not suggest strong sexual deviancy. He appears to have experienced genuine regret and guilt about the offence and possibly remorse and since the offence has learnt to deal with stress and anger more effectively and to seek help.

17 Dr Lennings administered the WASI Intelligence Test, the verbal memory scale of the Weshsler Memory Test (Revised), the Rey Complex Figure Test and the Trail Making Test which led him to conclude that the applicant's performance suggested impaired planning processes and significantly impaired cognitive processes. His verbal abilities lie at the bottom of the low-average range. Dr Lennings concluded that the applicant suffered from some mild brain damage as an infant and his behaviour since was the twin influence of early child abuse and brain damage. This damage appeared to be largely confined to the areas of visuo-motor coordination and reasoning and made him clumsy. His ability to respond to others in counselling and to communicate and to contribute to his community suggests that he has learned over the years to compensate for these problems.

18 Dr Lennings' report continued that the applicant presented as a young man who had undergone a severe crisis in adolescence and made a poor initial response to his adolescence but has since matured. Dr Lennings noted that he said that he loved the outdoors and admitted to being as `adrenaline junkie' who has learned to find excitement in legitimate sports such as abseiling, caving and hiking. He stated that the applicant retains a tendency to be quickly angered but stated that he has learned to control this; he also has a poor frustration tolerance and can be easily emotionally aroused. Nonetheless the applicant feels he has learned the skills to moderate these behaviours. Although he maintains a good network of peers he remains uncomfortable with intimate relationships.

19 In order to consider the issue of sexual re-offending, Dr Lennings assessed the applicant by applying the tests formulated by the Colombian Institute of Family Violence and concluded that the evaluation of factors thought to be predictive of or associated with sexual offending revealed a low risk.

20 Dr Lennings also applied the Static-99 Actuarial Risk Assessments and concluded that the applicant was in the low risk group.

21 Dr Lennings further applied the recently-developed tests in the Langevin and Federoff 2001 study and concluded that the applicant did not show a high degree of risk.

22 Dr Lennings' report concluded that clinical assessment showed a young man whose personality includes risk-taking and sensation seeking but whose ability to explore these in socially appropriate ways did not suggest any current measure of risk. He demonstrated features of brain damage from an early age and his behaviour had improved significantly since his early twenties. Currently he appeared to have achieved a stable lifestyle without significant risk factors for dysfunctional behaviour. He has high levels of emotional and social support and strong motivation to continue pro-social behaviour.

23 Dr Lennings' report stated that actuarial risk assessment placed the applicant in the low risk group. Structured clinical assessment suggested that he was in the low risk group. Clinical assessment suggested he has some moderate risk factors but given the low association between clinical assessment and accurate prediction there appeared to be no reason to assume risk given the low rating in the structured and actuarial risk groups.

24 Overall, Dr Lennings stated that the applicant did not appear to represent a risk of sexual recidivism greater that the general public. The only concerning feature of the assessment was the observation of the residual brain damage and the probability that such damage underlayed the high need for arousal. However, he appeared to have learned how to express these needs in pro-social ways and thus this potential problem had little impact on his current risk assessment. Generally speaking, actuarial and structured clinical assessment approaches were preferable to clinical assessment and accordingly, as these two approaches cohere this suggested confidence in the assessed risk-taking.

25 Dr Lennings stated that he believed that the applicant might warrant an exemption from the provisions of the legislation. He went on to say that the only likely risk that was foreseeable was if the applicant should resume alcohol abuse which was likely to result in behavioural disinhibition as well as an accentuation of his high need for arousal. In these circumstances some inappropriate behaviour either violent or sexual could occur and thus if a condition is to be considered it should be that the applicant refrains from alcohol use.

26 The respondent also produced a second short report from Dr Lennings dated 22 June 2002 in which he concluded that overall the risk assessment for violence did not suggest a particularly elevated current risk. It stated if the applicant was to resume alcohol abuse he would expect this risk to increase but there was no indication to suggest that there is a currently significant risk of him abusing alcohol in the near future.

27 Dr Lennings stated in telephonic evidence to the Tribunal that it would require a catastrophic event to change the applicant's mood and tendency to risk taking which could lead to further alcohol abuse. He said that for the applicant to act out in a sexually offensive way it would require both a catastrophic event and his inhibitions to be lowered by alcohol abuse. Examples of such a catastrophic event would have to be his natural mother rejecting him; his becoming engaged to marry and the relationship falling apart; his fathering a child to whom something bad happened. Dr Lennings said that it would be a rare event.

28 Dr Lennings was also asked about the predictors for persons with an alcohol problem recommencing resumption of alcohol after giving it up. He stated that research showed the strongest likelihood of recommencing was in the first 6 months of cessation of drinking. For persons with strong social support, especially where that social support was strong before as well as after treatment for alcohol abuse, there was a highly predictive good outcome after five years of abstinence.

29 Dr C. Powell a psychologist of Christian Psychological Services made a report dated 3 January 1995 which was produced to the Tribunal. He had been counselling the applicant for 6 years since 1989. He stated that he had seen the applicant twice during the four months prior to the offence and the applicant had reported that he had visited his natural parents for a period of several weeks and that this visit was at first a pleasant experience. However, the applicant's natural mother telephoned him prior to the offence to say that it would be best if they had no further contact. This sudden change of attitude from her precipitated more feelings of rejection and had resulted in considerable anger and rebellious behaviour. Dr Powell went on to say that it seemed likely that the attack was at least in part precipitated by the applicant's recent experience of another massive rejection by his natural mother. He stated that the applicant was not very articulate about these issues and unfortunately frequently held them inside instead of talking them out with his adoptive parents and other mature people. In summary, he said it was clear that Mark was a hurt, angry and confused young man and his unprovoked attack on a young woman in daylight was a mindless acting out of this anger, but on the more positive side there was no evidence at all of a major sexual disturbance in the applicant and his profile was not that of a rapist. Rather he believed that the applicant was a confused adolescent.

30 A report from Dr W. Rowe, Psychiatrist dated 5 December 1994 was also produced. Dr Rowe said that the applicant was obviously a very dull individual and was probably functioning around the IQ level of 90, perhaps a little lower. He did know right from wrong and therefore McNaughton rules did not apply. He was chronic pathological liar and although there was no evidence of any schizophrenic process, he thought that he was somewhat blurred around the edges with respect to fantasy and reality. He did not feel that rape was a motive, and noted that it was an exceedingly clumsy way of making contact with a female. He stated that the applicant had not had any success with females in the past but he has an obvious sexual drive which could get out of hand in the future if something was not done.

31 A report of Dr Richard Wu, a Psychiatrist, dated 15 July 1996 was produced. Dr Wu stated that he considered that the applicant's propensity for violence was quite low and that the assault occurred in the context of the applicant's experience of intense anger and confusion as a result of being rejected by his natural mother. He stated that this was not a premeditated act and the applicant quickly left the scene once he realised the gravity of his action. He thought the applicant's remorse had been quite evident during the interview and that the emotional crisis at the time was indeed exceptional and that it was an unfortunate outcome because he was unable to effectively articulate his feelings. He noted that the applicant had no other history of criminal offence and seemed to be accepting of the termination of contact with his natural mother and to have abstained from drugs and alcohol and that there was no clinical evidence of psychotic disorder. He stated that the applicant felt intimidated by females mainly because of his low self-esteem but he could find no evidence of major sexual disturbance or fantasies of sexual aggressions towards women.

32 A further report from Dr Wu dated 19 September 2001 was produced in which he stated that the applicant had a history of difficulties in coping with depression and negative emotions and that he had resorted to one episode of impulse discontrol which lead to the offence in 1994 and to a later period of substance abuse. He stated that the applicant did not have an anti-social personality or track record of criminal offences and in more recent years had demonstrated good motivation and rehabilitation and the acquisition of good social skills. He thought the likelihood of re-offence to be low particularly as the applicant has demonstrated his ability to avoid substances and was in an emotional environment helpful to his emotional coping.

Other evidence

33 The applicant and his parents gave sworn evidence repeating much of the history that appeared in the reports that are summarised above. They stated that the applicant lived in squats and on the streets for several years and was binge drinking and engaged in some experimentation with illegal drugs. Late in 1999, to the applicant's credit, when he was at a very low ebb he sought assistance from a Sydney detoxification clinic which referred him to a rehabilitation centre which is based in rural New South Wales. He grasped this opportunity especially as it was geographically a long way from his associates and he spent thirteen months in residence before being discharged as a much improved person. He is still in contact with the managers of this rehabilitation centre who he now regards as friends.

34 The applicant is now living successfully in a small New South Wales country town where he was working as a volunteer with a youth group under the auspices of the Uniting Church which he ceased doing when he realised that he was a prohibited person.

35 The applicant is receiving income from Centrelink and is genuinely looking for paid employment and although the opportunities are very limited in the town in which he is living I accept that he will take any employment that he can obtain. He states that his preference is to work with youth.

36 The applicant attends Alcoholics Anonymous meetings weekly and has done so since January 2000 He states that he intends to continue to do so for life which intention I accept as genuine. He makes monthly visits to his adopted family in Sydney who are most nurturing and supportive and who assisted in representing him at the various hearings in this Tribunal.

37 He is secretary of the local Department of Housing Advisory Board that coordinates and liaises between Department of Housing tenants on the one hand and various government agencies such as the Police on the other.

38 He has not had any contact with his birth mother since she rejected him in 1994 and emphasised that he had no intention of renewing that contact. He does not presently have a girlfriend and has never been in a long-term relationship

39 Various positive character references were tendered. These included the Alcoholics Anonymous group that the applicant attends; both the co-ordinator and the chairperson of the rural based rehabilitation agency he attended; the applicant's sister who is a qualified psychologist; the man with whom the applicant shares a house; and a former recent employer. All of these referees emphasised the applicant's alcohol abstinence and emphasised and accepted the applicant's strong and genuine intention to do so on a permanent basis.

40 The applicant gave strong and very credible evidence that he had not touched alcohol since September 1997 and that he had no intention of touching alcohol or experimenting with illegal drugs again. The applicant's parents corroborated this.

41 Two references from the Reverend L, the Uniting Church minister from the town where the applicant resides were produced which showed the high esteem that the applicant was held in his local community and commenting on his regular church going, and the help he had given to the local church youth group. The applicant gave evidence that he attended his church each Sunday and that the Rev L visits him at his house for coffee every fortnight and he telephones the Rev L for advice as necessary.

Reasons and decision

42 I turn firstly to the factors that must be taken into account pursuant to s 9(5) of the Act. The offence of indecent assault was unplanned and caused no physical injury but would have caused great distress to the victim and is in the middle range of seriousness of sexual offences. The offence was precipitated by an extraordinary and traumatic event which was not the fault of the applicant. The victim was approximately the same age as the applicant. The offence was committed eight years ago, which is one third of the present life of the applicant. The applicant has not come to the attention of the criminal justice system in an adverse way either before or after the offence. The applicant has greatly matured and has successfully undertaken a programme of rehabilitation and is now a respected member of his community.

43 The expert evidence that the applicant is not a relevant risk to children is very persuasive. The only possible qualification to this conclusion comes from the psychologist Dr Lennings who raised the possibility of the applicant resuming alcohol abuse, which in turn might result in behavioural disinhibition and the accentuation of the applicant's need for arousal, whereupon violent or sexual behaviour might occur. He stated that the only risk of reoffending was the occurrence of the dual factors of an emotionally catastrophic event plus disinhibition of the applicant's emotions by alcohol abuse. He also stated that the possibility of alcohol abuse which could precipitate this is only likely to occur as a result of a catastrophic event and such a catastrophic emotional event would have to be truly exceptional. Dr Lennings described it as "a rare event". Although the three examples of catastrophic event that he gave were not intended to be exhaustive the chance of at least any of those occurring with the next two years was especially remote given the applicant's determination not to have any further contact with his birth-mother, and the fact that he presently has no girlfriend and has never had a long term relationship.

44 Dr Lennings stated that statistically a relapse to alcohol abuse was unlikely to occur after five years abstinence, which period ceases in approximately two years time. The chance of such a catastrophic event occurring in the next two years must indeed be remote. The chance of it leading to alcohol abuse must also be discounted by virtue of the applicant's social support, in particular his adoptive parents, the Rev L, and Alcoholics Anonymous.

45 To require the applicant to submit to a condition that he abstain from alcohol or illegal drug use would be pointless. The evidence is overwhelming that the applicant has no intention of doing this and would only possibly do so in such exceptional circumstances that, if they should arise, would not be influenced by any condition imposed by the Tribunal.

46 The proposed monthly letter from the applicant to the respondent would seem to have no effect other than to embarrass and humiliate the applicant. In the unlikely event of the applicant abusing alcohol he would be unlikely to inform the respondent of this and in these circumstances would be unlikely to hold down any employment child related or otherwise.

47 There is no evidence before the Tribunal that illegal drug taking was a possibility or if it did in fact occur that it would be likely to be a risk factor.

48 The applicant was understandably most reluctant to nominate Rev L to provide a monthly report to the respondent for a period of two years as he was embarrassed that such an onerous task would effect their therapeutic friendship. Consequently the applicant, while opposing this condition, nominated a drug and alcohol counsellor who was acceptable to the respondent who agreed to provide the reports. However the prospect of an adverse report from this counsellor is too remote to warrant the imposition of such a condition.

49 The Tribunal agrees with the views of Peterson J in L v Commission for Children and Young People (2001) NSWIRComm 134 at paragraph 27:

Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm.

50 The tribunal also agrees with the views of Haylen J in R v Commission for Children and Young People (2002) NSWIRComm 101 at paragraph 104:

Risk referred to in s 9(4) is not merely theoretical or possible risk arising from the fact of a previous conviction, but is a reference to an unacceptable risk. A real risk, a likelihood of harm or a recognisable potential having regard to the need to ...protect children...

51 The evidence before the Tribunal allows it to be comfortably satisfied on the civil standard of proof as enunciated in Briginshaw v Briginshaw [1938] HCA 34; 1938 60 CLR 336 at 361-362, that the applicant does not pose a risk to persons under the age of 18. The possibility of risk is too remote to warrant the impositions of the conditions requested by the respondent.

Order

52 The Child Protection (Prohibited Employment) Act is not to apply to BH in respect of the offence of indecent assault which he committed on 31 October 1994 and was convicted on 19 January 1995.