BVT v Children's Guardian (No 3)

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 This section has since been repealed.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whether the offence of which the applicant had been previously convicted constituted a disqualifying offence under the repealed section 65 of the Crimes Act 1900 (NSW).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and that the offence of which the applicant had been previously convicted constituted a disqualifying offence under the repealed section 65 of the Crimes Act 1900 (NSW).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and that the offence of which the applicant had been previously convicted constituted a disqualifying offence under the repealed section 65 of the Crimes Act 1900 (NSW).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.