Commission for Children and Young People v V [2002] NSWSC 949

Commission for Children and Young People v V [2002] NSWSC 949

Although the Tribunal erred in placing the onus on the Commission, it reached the correct result. Properly construed, s 9(4) is concerned with a real and appreciable risk to the safety of children, not any minimal or theoretical risk; the assessment under s 9 involves consideration of the offence, the applicant's current character and all relevant circumstances; and conditions under s 9(9) may be used in making an order so that an applicant who might otherwise pose some risk does not pose a real unacceptable risk in the permitted circumstances. The conditional order that the Act not apply to V was therefore not shown to involve legal error warranting appellate intervention.

Jurisdiction
Australia
Judgment Date
23 October 2002
Procedural Posture
Appeal on a Question of Law From a Decision of the Administrative Decisions Tribunal Under S 9 of the Child Protection (prohibited Employment) Act 1998 / Appeal Dismissed
Outcome
Appeal dismissed with costs.
Legal Topics
['prohibited Person Seeking Declaration That Prohibition Not Apply' 'risk to the Safety of Children' 'conditions on Orders Under S 9' 'onus and Standard of Proof' 'appeal From Administrative Decisions Tribunal']
['child Welfare' 'administrative Law' 'statutory Interpretation'] ['prohibited Person Seeking Declaration That Prohibition Not Apply' 'risk to the Safety of Children' 'conditions on Orders Under S 9' 'onus and Standard of Proof' 'appeal From Administrative Decisions Tribunal']

Case Brief

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Procedural Posture

Appeal on a Question of Law From a Decision of the Administrative Decisions Tribunal Under S 9 of the Child Protection (prohibited Employment) Act 1998 / Appeal Dismissed

Legal Issues

  1. 1 ['Whether the applicant for an order under s 9 bore the onus, on the Briginshaw standard, of showing that he did not pose a risk to children.' 'Whether any real risk to some children prevented the Tribunal from making an order under s 9.' "Whether s 9(4) imposed a threshold or condition precedent separate from the Tribunal's discretion under s 9(5)." 'Whether the Tribunal could take proposed conditions under s 9(9) into account in deciding whether the applicant posed a risk to the safety of children.' 'Whether the condition imposed addressed the risk assessed by the Tribunal.']

Ratio Decidendi

Although the Tribunal erred in placing the onus on the Commission, it reached the correct result. Properly construed, s 9(4) is concerned with a real and appreciable risk to the safety of children, not any minimal or theoretical risk; the assessment under s 9 involves consideration of the offence, the applicant's current character and all relevant circumstances; and conditions under s 9(9) may be used in making an order so that an applicant who might otherwise pose some risk does not pose a real unacceptable risk in the permitted circumstances. The conditional order that the Act not apply to V was therefore not shown to involve legal error warranting appellate intervention.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' "The plaintiff Commission should pay the respondent's costs of the appeal."]