BRU v Children’s Guardian [2015] NSWCATAD 119

BRU v Children’s Guardian [2015] NSWCATAD 119

Having considered the mandatory matters in section 30(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal found that the applicant had discharged the onus on the balance of probabilities of proving that he did not pose a real and appreciable risk to the safety of children. The offence was serious, but it occurred more than 40 years earlier, was the applicant's only offence, there was no subsequent adverse conduct, the expert evidence assessed the risk as minimal or low, and the protective factors outweighed the statutory presumption. An enabling order and clearance order were therefore warranted.

Jurisdiction
Australia
Judgment Date
15 May 2015
Procedural Posture
Application for an Enabling Order and Administrative Review Concerning Refusal of a Working With Children Check Clearance / Final Determination; Principal Judgment With Reasons After Orders Made on 15 May 2015
Outcome
Application granted; enabling order made and Children's Guardian ordered to grant the applicant a clearance.
Legal Topics
['enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw)' 'disqualified Person' 'carnal Knowledge Conviction Under Repealed Section 71 Crimes Act 1900 (nsw)' 'presumption of Risk to the Safety of Children' 'onus and Civil Standard of Proof' 'risk Assessment']
['administrative Law' 'child Protection' 'working With Children Check Clearance'] ['enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw)' 'disqualified Person' 'carnal Knowledge Conviction Under Repealed Section 71 Crimes Act 1900 (nsw)' 'presumption of Risk to the Safety of Children' 'onus and Civil Standard of Proof' 'risk Assessment']

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Procedural Posture

Application for an Enabling Order and Administrative Review Concerning Refusal of a Working With Children Check Clearance / Final Determination; Principal Judgment With Reasons After Orders Made on 15 May 2015

Legal Issues

  1. 1 ['Whether the applicant had proved, contrary to the presumption in section 28(7) of the Child Protection (Working with Children) Act 2012 (NSW), that he did not pose a risk to the safety of children.' 'Whether an enabling order should be made declaring that the applicant was not to be treated as a disqualified person in respect of the 1972 carnal knowledge conviction.' "Whether the Children's Guardian should be ordered to grant the applicant a Working with Children check clearance."]

Ratio Decidendi

Having considered the mandatory matters in section 30(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal found that the applicant had discharged the onus on the balance of probabilities of proving that he did not pose a real and appreciable risk to the safety of children. The offence was serious, but it occurred more than 40 years earlier, was the applicant's only offence, there was no subsequent adverse conduct, the expert evidence assessed the risk as minimal or low, and the protective factors outweighed the statutory presumption. An enabling order and clearance order were therefore warranted.

Court Disposition

Application granted; enabling order made and Children's Guardian ordered to grant the applicant a clearance.

Orders

  • ['Pursuant to section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant BRU is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW), in respect of an offence of carnal knowledge...