ZM v Commission for Children and Young People [2007] NSWADT 148

Procedural Posture

Application for an Order Declaring That the Commission for Children and Young People Act 1998 Is Not to Apply to the Applicant in Respect of Specified Offences / Principal Matter; Substantive Application Determined

Legal Issues

1. 1 ['Whether the application should be determined under the repealed Child Protection (Prohibited Employment) Act 1998 or under the Commission for Children and Young People Act 1998 as amended.' 'Whether the applicant rebutted the statutory presumption that he posed a risk to the safety of children.' 'Whether the applicant should receive an order under s 33I(1) of the Commission for Children and Young People Act 1998 in respect of two indecent assault convictions.']

Ratio Decidendi

The Tribunal applied the Commission for Children and Young People Act 1998 and found that the applicant had rebutted the presumption that he posed a risk to the safety of children. The two indecent assault convictions involved an adult victim, occurred many years earlier when the applicant was relatively young, there was no evidence of repeat sexual offending or paedophilic interest, expert evidence assessed his risk of sexual reoffending as low, and allegations of physical harm to foster children were unsubstantiated or retracted. The Tribunal was satisfied that he did not pose a risk to the sexual, physical or psychological safety of children and therefore granted an order under s 33I(1).

Court Disposition

Application granted.

Orders

• ['The Commission for Children and Young People Act 1998 is not to apply to the applicant in respect of the offences (2) of indecent assault for which he was convicted on 4 August 1995.']