BVT v Children's Guardian (No 3)

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: BVT v Children's Guardian (No 3) [2017] NSWCATAD 111
Hearing dates: 14 December 2016
Date of orders: 06 April 2017
Decision date: 06 April 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
R Royer, General Member
Decision:

1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 17 April 2015 is refused and dismissed.

 

2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

 3) It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
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section 28 of the Child Protection (Working with Children) Act 2012 (NSW) - disqualifying offence under section 65 (now repealed) of the Crimes Act 1900 (NSW) for an assault with intent to rape in 1973 – rehearing of application after Supreme Court appeal and remitted to the Tribunal - assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children - onus of proof - onus of proof not discharged by applicant - enabling order refused.
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (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] NSWSC 1602
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
BVT v Children's Guardian [2016] NSWCATAD 12
BVT v Children’s Guardian (No 2)
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Details
Case
[2017] NSWCATAD 111
Decision Date

CaseChat Overview and Summary

The case of BVT v Children's Guardian (No 3) involved a dispute over the applicant's eligibility for a Working with Children Check Clearance under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The applicant sought the clearance to work with children, but the application was opposed by the Children's Guardian on the basis that the applicant had previously been convicted of an offence which constituted a disqualifying offence under section 65 of the Crimes Act 1900 (NSW). This section has since been repealed. The case was heard by the Civil and Administrative Tribunal of New South Wales, after a previous hearing had been remitted to the Tribunal following an appeal to the Supreme Court of New South Wales.

The primary legal issues for the Tribunal to decide were whether the applicant had satisfied the burden of proof in demonstrating that he was not a risk to the safety of children, and whether the offence of which the applicant had been previously convicted constituted a disqualifying offence under the repealed section 65 of the Crimes Act 1900 (NSW). The Tribunal was required to weigh the applicant's previous criminal history against the presumption of rehabilitation that had occurred over the intervening years since the offence was committed.

In reaching its decision, the Tribunal considered the nature and seriousness of the applicant's previous offence, the length of time that had elapsed since the offence was committed, and the applicant's personal circumstances. The Tribunal found that the applicant had not discharged the onus of proving that he was not a risk to the safety of children, and that the offence of which the applicant had been previously convicted constituted a disqualifying offence under the repealed section 65 of the Crimes Act 1900 (NSW). Accordingly, the Tribunal refused the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) and dismissed it. The Tribunal also made an order prohibiting the publication or broadcast of the names of any person mentioned in the proceedings, except for expert witnesses and officers of government agencies.

In summary, the Tribunal found that the applicant had not satisfied the burden of proof in demonstrating that he was not a risk to the safety of children, and that the offence of which the applicant had been previously convicted constituted a disqualifying offence under the repealed section 65 of the Crimes Act 1900 (NSW). The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) was therefore refused and dismissed. The Tribunal also made an order prohibiting the publication or broadcast of the names of any person mentioned in the proceedings, except for expert witnesses and officers of government agencies.

Orders

Orders of the court

1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 17 April 2015 is refused and dismissed.

2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

3) It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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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