ECO v Children’s Guardian [2020] NSWCATAD 244

ECO v Children’s Guardian [2020] NSWCATAD 244

The applicant rebutted the statutory presumption that he poses a risk to the safety of children. Although the disqualifying offence was serious, it occurred nearly 29 years earlier when the applicant was 18 and the victim was 14, the applicant admitted the conduct, pleaded guilty, expressed remorse, had no subsequent offending or adverse conduct, had stable employment and family life, and expert evidence assessed him as at very low risk of re-offending. The Tribunal was satisfied he did not pose a real and appreciable risk to children, that a reasonable person would allow direct unsupervised contact with him while engaged in child-related work, and that making the order was in the public...

Jurisdiction
Australia
Judgment Date
02 October 2020
Procedural Posture
Application for an Enabling Order Under S 28(1) of the Child Protection (working With Children) Act 2012 (nsw) Following Refusal of a Working With Children Check Clearance / On the Papers; Principal Judgment
Outcome
Application granted; enabling order made and working with children check clearance to be granted.
Legal Topics
['enabling Order' 'disqualified Person' 'disqualifying Offence' 'working With Children Check Clearance' 'risk to Safety of Children' 'public Interest']
['administrative Law' 'child Protection' 'working With Children Checks'] ['enabling Order' 'disqualified Person' 'disqualifying Offence' 'working With Children Check Clearance' 'risk to Safety of Children' 'public Interest']

Case Brief

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Procedural Posture

Application for an Enabling Order Under S 28(1) of the Child Protection (working With Children) Act 2012 (nsw) Following Refusal of a Working With Children Check Clearance / On the Papers; Principal Judgment

Legal Issues

  1. 1 ['Whether the applicant had rebutted the statutory presumption that he poses a risk to the safety of children arising from his conviction for a disqualifying offence.' 'Whether the Tribunal should make an order that the applicant is not to be treated as a disqualified person for the offence.' 'Whether a reasonable person would allow his or her child to have direct, unsupervised contact with the applicant while engaged in child-related work.' 'Whether it was in the public interest to make the enabling order.']

Ratio Decidendi

The applicant rebutted the statutory presumption that he poses a risk to the safety of children. Although the disqualifying offence was serious, it occurred nearly 29 years earlier when the applicant was 18 and the victim was 14, the applicant admitted the conduct, pleaded guilty, expressed remorse, had no subsequent offending or adverse conduct, had stable employment and family life, and expert evidence assessed him as at very low risk of re-offending. The Tribunal was satisfied he did not pose a real and appreciable risk to children, that a reasonable person would allow direct unsupervised contact with him while engaged in child-related work, and that making the order was in the public...

Court Disposition

Application granted; enabling order made and working with children check clearance to be granted.

Orders

  • ['The applicant is not to be treated as a disqualified person for the offence, in respect of s.66C(1) of the Crimes Act 1900 (NSW), for which he was convicted on 16 December 1991.' "The Children's Guardian is to grant the applicant with a working with children check clearance within 28 days of the publication of...