BGR v Children's Guardian

In the case of BGR v Children's Guardian, the applicant sought to have their disqualification from obtaining a Working with Children Clearance overturned. This clearance is required under the Child Protection (Working with Children) Act 2012 NSW for individuals who wish to work with children. The applicant had previously been convicted in 1997 of assault and committing an act of indecency, offences that led to their disqualification. The Children's Guardian, who is responsible for administering the Act, refused the applicant's application for a clearance, maintaining that the applicant remained a risk to children. The applicant took the matter to the Supreme Court of New South Wales, which was required to determine whether the applicant had successfully rebutted the presumption that they posed a risk to children.

The legal issues that the Court had to address included whether the applicant had demonstrated that they were no longer a risk to children and whether the presumption of risk could be rebutted given the age of the offences. The Court examined the statutory framework of the Act, including the criteria for granting a Working with Children Clearance and the presumption that a disqualified person poses a risk. The applicant argued that the length of time since the offences, their good character since the conviction, and their remorse should allow for the presumption of risk to be rebutted. The Court also considered the nature of the offences and the impact of the presumption on the applicant's right to work.

The Court found that the applicant had successfully rebutted the presumption that they posed a risk to children. The Court noted the applicant's lengthy period of good conduct, the absence of any further offending, and the remorse shown by the applicant as significant factors. The Court concluded that these factors, along with the age of the offences, justified the granting of a Working with Children Clearance. The Court was satisfied that the applicant no longer posed a risk to children and that the refusal of the clearance was unjust. Consequently, the Court made orders declaring that the applicant was not to be treated as a disqualified person and directing the Children's Guardian to grant the applicant a clearance.