NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BKP v Children's Guardian [2014] NSWCATAD 207 Hearing dates: 7 November 2014 Decision date: 28 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: The application filed 23 July 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.
Catchwords: ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the NSW Child Protection (Working with Children) Act 2012- disqualifying offence section 61L NSW Crimes Act 1900 -whether the applicant has proven he is not a risk to the safety of children-Tribunal not bound by the rules of evidence-onus of proof-failure to discharge the onus of proof-enabling order refused. Legislation Cited: Child Protection (Working with Children) Act 2012
Civil and Administrative Rules 2014
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFN v NSW Office of the Children's Guardian [2014] NSWCATAD 162
BFX v Children's Guardian [2014] NSWCATAD 115
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
Meissner v R (1995) 184 CLR 132
R v Commission for Children and Young People [2002] NSWIRComm 101
Roberts v Balancio (1987) 8 NSWLR 436Category: Principal judgment Parties: BKP (Applicant)
Children's Guardian (Respondent)Representation: Lighthouse Law Group (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 1410392 Publication restriction: Section 64 (1), Civil and Administrative Tribunal Act 2013-restricition on publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons.
reasons for decision
Introduction
An order was made at the commencement of the hearing of the proceedings under section 64 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") restricting publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons.
The applicant, known by the initials 'BKP' for the purposes of these proceedings, seeks an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 ("the Act") which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The enabling order would permit the applicant to work with children in any child-related work.
The applicant applied for a Working with Children check clearance on 17 November 2013 which was refused by the respondent on 30 June…
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- Case
- [2014] NSWCATAD 207
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicant had discharged the onus of proving that he was not a risk to the safety of children, given the nature of his disqualifying offence. The court had to consider the principles governing the grant of an enabling order under the Act, including the standard of proof and the fact that the Tribunal was not bound by the rules of evidence. It was essential to determine if the applicant's evidence and circumstances were sufficient to convince the Tribunal that he posed no risk to children.
The court concluded that the applicant had failed to discharge the onus of proving he was not a risk to the safety of children. The evidence presented did not sufficiently alleviate the concerns arising from the disqualifying offence. Consequently, the application for an enabling order was refused. The court's reasoning was based on the applicant's inability to provide adequate evidence to demonstrate his suitability to work with children despite the disqualifying offence.
The final orders of the court were that the application filed on 23 July 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 was refused and dismissed. This decision upheld the Children's Guardian's opposition to the applicant's clearance application, maintaining the safety standards for individuals working with children.
Orders
Orders of the court
The application filed 23 July 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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