BKE v Children's Guardian - [2014] NSWCATAD 185

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BKE v Children's Guardian [2014] NSWCATAD 185
Hearing dates: 26 August 2014
Decision date: 31 October 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Principal Member
Decision:
The applicant's application for an enabling order is refused.

Catchwords: ADMINISTRATIVE LAW - child protection - working with children check clearance - disqualified person - applicant convicted of a disqualifying offence of carnal knowledge in 1970 - statutory presumption the applicant poses a risk to the safety of children - whether the applicant has discharged his onus and rebutted the statutory presumption
Legislation Cited: Child Protection Prohibited Employment Act 1998 (repealed)
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Cases Cited: Commission for Children and Young People v V (2002) NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11
Category: Principal judgment
Parties: BKE (Applicant)
Children's Guardian (Respondent)
Representation: J Allan, Legal Aid Dubbo (Applicant)
Crown Solicitor (Respondent)

File Number(s): 1410360
Publication restriction: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and any child referred to in the evidence before the tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcasted without the leave of the tribunal.

reasons for decision

Introduction

The applicant, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an enabling order, pursuant to section 28 of that Act, declaring that he not be treated as a 'disqualified person' so that he can be granted a clearance to work with children.

Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant and any child referred to in the evidence before the tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcasted without the leave of the tribunal.

The applicant is a 'disqualified person' by reason of his conviction, on 19 May 1970, in the then Court of Quarter Sessions, for the offence of carnally knowing a girl under the age of 16 years contrary to s 71 of the Crimes Act 1900: see clause 1(i) of Schedule 2 of the Act.

The applicant was 20 years of age at the time. The Court made an order deferring sentence on the condition the applicant entered a recognizance to be of good behaviour for two years.

The applicant is now 64 years of age and seeks a working with children check clearance as he and his wife are the primary carers of their youngest grandson, who is 16 years of age. The applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCATAD 185
Decision Date: 31 October 2014

CaseChat Overview and Summary

The applicant, BKE, sought an enabling order from the court, challenging the refusal of an organisation to provide a working with children check clearance. BKE had been convicted in 1970 of a disqualifying offence of carnal knowledge. This conviction triggered a statutory presumption that BKE posed a risk to the safety of children, resulting in the organisation denying him the clearance. The central issue before the court was whether BKE had successfully discharged his onus to rebut the statutory presumption that he posed a risk to children, thereby warranting a change in the presumption's application.

The court examined the statutory framework governing the presumption and the onus of proof. It acknowledged the seriousness of the offence for which BKE was convicted but also recognised the significant passage of time since the conviction. The court noted that BKE had demonstrated substantial rehabilitation through his conduct over the years, including a clean criminal record and positive references. However, the court found that BKE had not provided sufficient evidence to rebut the statutory presumption that he posed a risk to children. The court held that the statutory presumption was not rebutted by BKE's evidence, and thus, the organisation's decision to deny the working with children check clearance was upheld.

Consequently, the court refused BKE's application for an enabling order. The court emphasised the importance of the statutory presumption in protecting children and the high threshold required to rebut such a presumption. The court's decision underscored the need for substantial evidence to overcome the statutory barrier, which BKE had not provided. The court's refusal of the enabling order meant that the organisation's decision to deny BKE the working with children check clearance stood, and BKE remained disqualified from obtaining the clearance based on his past conviction.

Orders

Orders of the court

The applicant's application for an enabling order is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	BKE v Children's Guardian [2014] NSWCATAD 185
Hearing dates:	26 August 2014
Decision date:	31 October 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	The applicant's application for an enabling order is refused.
Catchwords:	ADMINISTRATIVE LAW - child protection - working with children check clearance - disqualified person - applicant convicted of a disqualifying offence of carnal knowledge in 1970 - statutory presumption the applicant poses a risk to the safety of children - whether the applicant has discharged his onus and rebutted the statutory presumption
Legislation Cited:	Child Protection Prohibited Employment Act 1998 (repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998
Cases Cited:	Commission for Children and Young People v V (2002) NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11
Category:	Principal judgment
Parties:	BKE (Applicant) Children's Guardian (Respondent)
Representation:	J Allan, Legal Aid Dubbo (Applicant) Crown Solicitor (Respondent)
File Number(s):	1410360
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and any child referred to in the evidence before the tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcasted without the leave of the tribunal.