BGW v NSW Office of the Children's Guardian

In the matter of BGW v NSW Office of the Children's Guardian, the applicant sought to obtain a Working with Children check clearance through an enabling order under section 28 of the Child Protection (Working with Children) Act 2012. The applicant had been convicted of a disqualifying offence, specifically engaging in sexual intercourse with a 13-year-old girl, an offence under section 66C(1) of the Crimes Act 1900. The issue before the court was whether the applicant had demonstrated that he was not a risk to the safety of children, despite his disqualifying offence. The court had to consider the risk assessment conducted by an expert and the inherent limitations of risk assessment tools in this context.

The court examined the applicant's submission that the risk assessment by the expert indicated he was not a risk to children. However, the court recognised the limitations of risk assessment tools, especially in the context of sexual offences. The Tribunal was not bound by the rules of evidence and could consider all relevant material, but the onus of proof lay with the applicant to demonstrate that he was not a risk to children. The court found that the applicant had failed to discharge this onus of proof.

The court concluded that the applicant had not proven he was not a risk to children, despite the expert's risk assessment. Consequently, the application for an enabling order was refused and dismissed. The court's decision underscores the importance of a comprehensive assessment of risk factors in cases involving sexual offences against children, and the limitations of relying solely on expert assessments or risk assessment tools in such contexts.