Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BVT v Children's Guardian [2016] NSWCATAD 12 Hearing dates: 17 December 2015 Date of orders: 13 January 2016 Decision date: 13 January 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson - Senior Member
M O’Halloran - General MemberDecision: 1) The decision of the Children’s Guardian dated 20 November 2013 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
2) The application for review of the decision of the Children's Guardian and an enabling order filed 17 April 2015 is otherwise refused and dismissed.Catchwords: ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- disqualifying offence under (repealed) section 65 Crimes Act 1900 (NSW) assault with intent to rape-plea of guilty - sentence of 5 years imprisonment- risk assessment – assessment of risk posed by applicant- likelihood of repetition of disqualifying offence - 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 not discharged by applicant- enabling order refused. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children and Young Persons (Care and Protection) Regulation 2012
Civil and Administrative Rules 2014
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWCATAD 65
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
Carr v Simnovic (1980) 26 SASR 263
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
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
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
LA v Commissioner for Children and Young People [2012] NSWSC 1454
M v M [1988] HCA 68; 166…
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Details
- AGLC
- BVT v Children's Guardian [2016] NSWCATAD 12
- Case
- [2016] NSWCATAD 12
- Decision Date
CaseChat Overview and Summary
In the case of BVT v Children's Guardian, the applicant sought to challenge the refusal of a Working with Children check clearance. The refusal was based on a disqualifying offence under the repealed section 65 of the Crimes Act 1900 (NSW). The applicant had pleaded guilty to assault with intent to rape and was sentenced to five years imprisonment. The matter was brought before the court to determine whether the applicant had demonstrated that he was not a risk to the safety of children, and thus qualified for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The court had to consider the risk assessment of the applicant and whether the onus of proof was discharged.
The legal issues that arose in the case involved the interpretation and application of the relevant legislation, including the Child Protection (Working with Children) Act 2012 (NSW) and the Crimes Act 1900 (NSW). The court had to determine the scope of the Tribunal's powers in assessing the risk posed by the applicant and whether the applicant had satisfied the requirements for an enabling order. The court also had to consider the burden of proof and the standard of proof applicable to the case. In addition, the court had to consider the nature of the disqualifying offence and its relevance to the risk assessment.
The court found that the applicant had not discharged the onus of proof to establish that he was not a risk to the safety of children. The court held that the Tribunal was not bound by the rules of evidence and could consider any material that it considered relevant. However, the court found that the applicant had not provided sufficient evidence to establish that he was not a risk to children. The court held that the nature of the disqualifying offence was relevant to the risk assessment, and the applicant's plea of guilty and sentence demonstrated a significant risk of repetition of the offence. The court concluded that the applicant had not satisfied the requirements for an enabling order.
The court affirmed the decision of the Children's Guardian to refuse the applicant a Working with Children check clearance. The court also dismissed the application for review and an enabling order filed by the applicant. The court held that the applicant had not discharged the onus of proof to establish that he was not a risk to the safety of children, and the decision of the Children's Guardian was affirmed.
The legal issues that arose in the case involved the interpretation and application of the relevant legislation, including the Child Protection (Working with Children) Act 2012 (NSW) and the Crimes Act 1900 (NSW). The court had to determine the scope of the Tribunal's powers in assessing the risk posed by the applicant and whether the applicant had satisfied the requirements for an enabling order. The court also had to consider the burden of proof and the standard of proof applicable to the case. In addition, the court had to consider the nature of the disqualifying offence and its relevance to the risk assessment.
The court found that the applicant had not discharged the onus of proof to establish that he was not a risk to the safety of children. The court held that the Tribunal was not bound by the rules of evidence and could consider any material that it considered relevant. However, the court found that the applicant had not provided sufficient evidence to establish that he was not a risk to children. The court held that the nature of the disqualifying offence was relevant to the risk assessment, and the applicant's plea of guilty and sentence demonstrated a significant risk of repetition of the offence. The court concluded that the applicant had not satisfied the requirements for an enabling order.
The court affirmed the decision of the Children's Guardian to refuse the applicant a Working with Children check clearance. The court also dismissed the application for review and an enabling order filed by the applicant. The court held that the applicant had not discharged the onus of proof to establish that he was not a risk to the safety of children, and the decision of the Children's Guardian was affirmed.
Orders
Orders of the court
1) The decision of the Children’s Guardian dated 20 November 2013 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
2) The application for review of the decision of the Children's Guardian and an enabling order filed 17 April 2015 is otherwise 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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