BRC v Children’s Guardian [2016] NSWCATAD 60

BRC v Children’s Guardian [2016] NSWCATAD 60

Having regard to the section 30 factors, the applicant's two offences, the passage of 22 years since the 1993 disqualifying offence and 17 years since the 1998 offence, the absence of further criminal offending, the adult victim of the disqualifying offence, the expert evidence assessing low risk and no direct evidence of risk to children, and the Tribunal's acceptance that any minimisation was adequately explained, the evidence did not establish that the applicant poses a real and appreciable risk to the safety of children. The statutory presumption was displaced and an enabling order should be made.

Jurisdiction
Australia
Judgment Date
05 April 2016
Procedural Posture
Administrative Review Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 Following Refusal of a Working With Children Check Clearance / Decision After Hearing
Outcome
The respondent's decision was set aside and the Tribunal made an enabling order requiring the Children's Guardian to grant the applicant a Working with Children Check clearance.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to Safety of Children' 'indecent Assault Conviction']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'risk to Safety of Children' 'indecent Assault Conviction']

Case Brief

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Procedural Posture

Administrative Review Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 Following Refusal of a Working With Children Check Clearance / Decision After Hearing

Legal Issues

  1. 1 ['Whether the applicant should be granted an enabling order declaring that he is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012.' 'Whether the applicant proved contrary to the statutory presumption that he poses a risk to the safety of children.' 'Whether the evidence established a real and appreciable risk to the safety and well-being of children and young persons.']

Ratio Decidendi

Having regard to the section 30 factors, the applicant's two offences, the passage of 22 years since the 1993 disqualifying offence and 17 years since the 1998 offence, the absence of further criminal offending, the adult victim of the disqualifying offence, the expert evidence assessing low risk and no direct evidence of risk to children, and the Tribunal's acceptance that any minimisation was adequately explained, the evidence did not establish that the applicant poses a real and appreciable risk to the safety of children. The statutory presumption was displaced and an enabling order should be made.

Court Disposition

The respondent's decision was set aside and the Tribunal made an enabling order requiring the Children's Guardian to grant the applicant a Working with Children Check clearance.

Orders

  • ['The Tribunal declares that the applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act 2012 in respect of the disqualifying offence.' "Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to...