BGX v Children's Guardian

The applicant, BGX, applied for a Working with Children check clearance, which was refused on the basis of a disqualifying offence under section 91H(2) of the Crimes Act 1900 for possessing child pornography. BGX sought to challenge this decision by applying for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012. The matter was heard by the Civil and Administrative Tribunal of New South Wales. The primary legal issue before the Tribunal was whether the applicant had demonstrated that he was not a risk to the safety of children, thereby justifying the grant of an enabling order. Additionally, the Tribunal considered whether an extension of time to file the application should be granted, as it was submitted approximately one month after the statutory deadline.

The Tribunal held that it was not bound by the rules of evidence, but the onus of proof rested on the applicant to demonstrate that he was not a risk to the safety of children. The applicant failed to discharge this onus, as he did not provide sufficient evidence to convince the Tribunal that he had genuinely reformed and was no longer a risk to children. The Tribunal also addressed the application for an extension of time to file the application for an enabling order. It found that the application was filed out of time but granted an extension under section 41 of the Civil and Administrative Tribunal Act 2013. Despite this, the Tribunal ultimately refused to grant the enabling order as the applicant did not meet the required standard of proof.

The Tribunal dismissed the application, confirming that the refusal to grant an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 would stand. The Tribunal found that BGX had not successfully demonstrated that he was not a risk to the safety of children, and thus the application for the enabling order was refused.