CSZ v Children’s Guardian [2017] NSWCATAD 57

CSZ v Children’s Guardian [2017] NSWCATAD 57

The applicant discharged the onus of proving, on the balance of probabilities, that he does not pose a real and appreciable risk to the safety of children. The Tribunal relied on the circumstances of the 1976 offence, the applicant's youth and close age to the victim, the relationship context, the low penalty imposed, the absence of similar offending or child protection concerns over 41 years, the respondent's non-opposition, and satisfaction of the section 30(1A) reasonable person and public interest requirements. Accordingly, the applicant was not to be treated as a disqualified person for the offence.

Jurisdiction
Australia
Judgment Date
19 January 2017
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) for a Working With Children Check Clearance / Decision After Hearing
Outcome
Enabling order granted; declaration made that the applicant is not to be treated as a disqualified person.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'risk to the Safety of Children' 'enabling Order']
['administrative Law' 'child Protection'] ['working With Children Check Clearance' 'disqualified Person' 'disqualifying Offence' 'risk to the Safety of Children' 'enabling Order']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant should be granted an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW).' 'Whether the applicant rebutted the presumption that he poses a risk to the safety of children.' 'Whether the requirements in section 30(1A) of the Child Protection (Working with Children) Act 2012 (NSW) were satisfied.']

Ratio Decidendi

The applicant discharged the onus of proving, on the balance of probabilities, that he does not pose a real and appreciable risk to the safety of children. The Tribunal relied on the circumstances of the 1976 offence, the applicant's youth and close age to the victim, the relationship context, the low penalty imposed, the absence of similar offending or child protection concerns over 41 years, the respondent's non-opposition, and satisfaction of the section 30(1A) reasonable person and public interest requirements. Accordingly, the applicant was not to be treated as a disqualified person for the offence.

Court Disposition

Enabling order granted; declaration made that the applicant is not to be treated as a disqualified person.

Orders

  • ['The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of carnal knowledge of which he was convicted in 1976.']