ANE v NSW Commission for Children and Young People [2014] NSWCATAD 3

ANE v NSW Commission for Children and Young People [2014] NSWCATAD 3

ANE did not discharge the statutory onus of proving that he does not pose a risk to the safety of children. Although 27 years had passed since the index offence and he had not been convicted of a similar offence, his more recent violence offences, driving offences and child-at-risk reports appeared connected with alcohol consumption, there was evidence of children being placed at risk while he was intoxicated, and the Tribunal was not persuaded that he had adequately addressed his alcohol consumption or the offending conduct that brought him within the Commission Act.

Jurisdiction
Australia
Judgment Date
24 January 2014
Procedural Posture
Application for an Order Under the Commission for Children and Young People Act 1998 Declaring That Division 2 of Part 7 Not Apply to the Applicant in Respect of His Offence / Determination After Hearing in the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal
Outcome
Application refused; leave granted to bring a further application after two years from publication of the decision.
Legal Topics
['prohibited Person Declaration' 'risk to the Safety of Children' 'serious Sex Offence' 'child Related Employment' 'statutory Presumption and Onus of Proof']
['administrative Law' 'child Protection' 'working With Children Regulation'] ['prohibited Person Declaration' 'risk to the Safety of Children' 'serious Sex Offence' 'child Related Employment' 'statutory Presumption and Onus of Proof']

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Procedural Posture

Application for an Order Under the Commission for Children and Young People Act 1998 Declaring That Division 2 of Part 7 Not Apply to the Applicant in Respect of His Offence / Determination After Hearing in the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Whether ANE discharged the onus under s 33J of the Commission for Children and Young People Act 1998 of proving that he does not pose a risk to the safety of children.' 'Whether an order should be made declaring that Division 2 of Part 7 of the Commission for Children and Young People Act 1998 is not to apply to ANE in respect of his index offence.' 'Whether leave should be granted to bring a further application earlier than five years after refusal.']

Ratio Decidendi

ANE did not discharge the statutory onus of proving that he does not pose a risk to the safety of children. Although 27 years had passed since the index offence and he had not been convicted of a similar offence, his more recent violence offences, driving offences and child-at-risk reports appeared connected with alcohol consumption, there was evidence of children being placed at risk while he was intoxicated, and the Tribunal was not persuaded that he had adequately addressed his alcohol consumption or the offending conduct that brought him within the Commission Act.

Court Disposition

Application refused; leave granted to bring a further application after two years from publication of the decision.

Orders

  • ["ANE's application for an order under subs 31I(1) of the Commission for Children and Young People Act 1998 is refused." 'Pursuant to subs 31I(5) of the Commission for Children and Young People Act 1998, ANE is granted leave to bring a further application for an order after two years from the publication of this...