EHC v Children’s Guardian [2020] NSWCATAD 173

EHC v Children’s Guardian [2020] NSWCATAD 173

The applicant, despite a historic conviction for an act of indecency committed towards an adult, has demonstrated through evidence and lack of subsequent offending that he no longer poses a real and appreciable risk to the safety of children. The Tribunal found, on the balance of probabilities and in light of all evidence, that the presumption of risk under s 28(7) of the Act has been rebutted. A reasonable person would permit unsupervised contact with children while the applicant engaged in child-related work, and it is in the public interest to grant the enabling order allowing the applicant to obtain a Working with Children Check clearance.

Jurisdiction
Australia
Judgment Date
06 July 2020
Procedural Posture
Administrative Review / Hearing and Determination of Application for Enabling Order Under S 28 Child Protection (working With Children) Act 2012 (nsw)
Outcome
Application granted; enabling order made; applicant not a disqualified person in respect of relevant offence; order that Working with Children Check clearance be granted.
Legal Topics
['working With Children Check' 'risk Assessment' 'enabling Order' 'disqualification Under Child Protection (working With Children) Act 2012']
['administrative Law' 'child Protection'] ['working With Children Check' 'risk Assessment' 'enabling Order' 'disqualification Under Child Protection (working With Children) Act 2012']

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Procedural Posture

Administrative Review / Hearing and Determination of Application for Enabling Order Under S 28 Child Protection (working With Children) Act 2012 (nsw)

Legal Issues

  1. 1 ['Whether the applicant is a risk to the safety of children for the purposes of section 28(7) of Child Protection (Working with Children) Act 2012 (NSW)' 'Whether a reasonable person would allow a child to have unsupervised contact with the applicant while engaged in child-related work under section 30(1A)' 'Whether it is in the public interest to make the order enabling a Working with Children Check clearance']

Ratio Decidendi

The applicant, despite a historic conviction for an act of indecency committed towards an adult, has demonstrated through evidence and lack of subsequent offending that he no longer poses a real and appreciable risk to the safety of children. The Tribunal found, on the balance of probabilities and in light of all evidence, that the presumption of risk under s 28(7) of the Act has been rebutted. A reasonable person would permit unsupervised contact with children while the applicant engaged in child-related work, and it is in the public interest to grant the enabling order allowing the applicant to obtain a Working with Children Check clearance.

Court Disposition

Application granted; enabling order made; applicant not a disqualified person in respect of relevant offence; order that Working with Children Check clearance be granted.

Orders

  • ['It is declared the applicant is not a disqualified person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of committing an act of indecency with a person above the age of 16 under s 61N(2) of the Crimes Act 1900 entered on 7 April 2005 at...