Unsubstantiated Allegations Still Result In Loss of Working With Children Check

When Unproven Allegations Still Add Up to a Real Risk

A recent decision of the NSW Civil and Administrative Tribunal (NCAT) is a useful reminder that unproven allegations are not the same as irrelevant allegations. A man applied to the Office of the Children's Guardian (the OCG) for a Working with Children Check clearance after years spent working in roles involving public safety and community services. Almost every serious allegation ever made against him had been dismissed, withdrawn, or never charged at all. NCAT still upheld the OCG's refusal, and the reasoning is worth understanding if you are ever the person weighing up a pattern of complaints that never quite resulted in a finding.

What happened

Over more than a decade, six separate women and teenage girls, unknown to each other, made broadly similar complaints about the applicant. Two involved allegations of indecent assault as a teenager and young man, both dismissed at trial. One involved a workplace sexual harassment complaint that resulted in two apprehended violence orders but no criminal charges. One involved allegations that he supplied alcohol to, and had a sexual encounter with, an underage girl, never charged due to insufficient evidence. A workplace investigation into a separate set of allegations found he had sent dozens of inappropriate messages to a young colleague who had just left school. The only matter ever formally proven was an unrelated conviction for unlawfully entering a woman's home to leave her flowers, later reduced to a good behaviour bond on appeal.

The applicant denied almost all of it. He told the Tribunal he had been the target of false, retaliatory or racially motivated complaints by six young women over thirteen years, and he provided character references describing him as a devoted father figure and a man of the highest integrity.

Why the Tribunal was not persuaded

Under the Child Protection (Working with Children) Act 2012 (NSW), the OCG and NCAT on review must refuse a clearance if satisfied a person poses a risk to the safety of children, meaning a real and appreciable risk, not merely a theoretical one. The legal test does not require every allegation to be individually proven true or false to be relevant to that assessment. Following the approach taken in earlier Supreme Court and Court of Appeal authority on this legislation, where an allegation cannot be dismissed as groundless it has to be weighed as a possibility and considered as part of the overall picture, rather than resolved with the kind of certainty a criminal court would need before convicting someone.

Applying that approach, the Tribunal considered which explanation was more likely: that six unconnected women and girls had each independently decided, over a period spanning thirteen years, to make broadly similar false allegations against the same man, or that a pattern in his own conduct had led to those complaints. It found the second explanation more likely, and described his conduct as persistent and directed at young women and teenage girls.

What made this worse in the Tribunal's eyes was not any single allegation. It was that his standard response to every complaint, across three decades, was the same: deny it, question the credibility and motives of the person who raised it, and present himself as the one who had been wronged. The Tribunal found this reflected a complete absence of insight, and treated that absence as making even the less serious individual matters more significant when viewed together.

Twenty years without a further complaint did not change the outcome

The applicant's strongest argument was the two decades that had passed since most of these incidents. The Tribunal did not accept that this period, on its own, reduced the risk he posed. It found there was no evidence the gap reflected any real change in insight or behaviour, only the passage of time, and it noted that even the character references supporting him were built on his own account of events, an account the Tribunal had already found unreliable.

The Tribunal was satisfied there was a real and appreciable risk that he would behave in a similar way towards teenage girls in the future. It went on to find that a reasonable person, aware of all the circumstances, would not allow their own child to have unsupervised contact with him, and that granting a clearance would not be in the public interest, both matters the legislation requires the Tribunal to consider once a risk is found. The refusal was upheld.

What this means for HR managers and safeguarding officers

A few points from this decision translate directly into workplace and screening practice.

An allegation that was never proven in a criminal or disciplinary process is not automatically irrelevant to a risk assessment. The question a screening body or an employer has to answer is usually broader than the question a court or an internal investigation was answering, and a complaint that could not be substantiated to that higher standard may still be part of a wider pattern worth weighing.

Look at the pattern across time and across unconnected complainants, not each complaint in isolation. A single unproven allegation tells you little. Several unconnected people raising similar concerns over a long period tells you considerably more, particularly where there is no plausible reason for those people to have coordinated or to know about each other.

Treat a lack of insight as a risk factor in its own right. A person who responds to every concern raised about them by attacking the credibility of whoever raised it, rather than engaging with the substance of what is being said, is telling you something relevant about future risk, independent of whether any one allegation is proven.

Be cautious about character evidence built on the subject's own narrative. A reference that praises someone's integrity based on what that person has told the referee about a set of allegations carries far less weight than independent evidence of how the person has actually behaved.

Do not assume the passage of time on its own is evidence of change. An absence of further complaints can reflect genuine change, but it can equally reflect changed circumstances, reduced opportunity, or simply that people stopped coming forward. Look for something that actually demonstrates insight or a change in behaviour, not just a gap in the record.

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