Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BVT v Children’s Guardian (No. 4) [2018] NSWCATAD 153 Hearing dates: 29 May 2018 Date of orders: 29 May 2018 Decision date: 19 July 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Roberts, Senior Member Decision: (1) The applicant is not to be treated as a disqualified person for the offence of assault with intent to rape in 1973 under the Crimes Act 1900 (NSW).
(2) The applicant’s application for an enabling order is granted.
(3) Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant a working with children check clearance to the applicant.
(4) Suppression Order made in regards to the name of the applicant, the applicant's partner, the child referred to in the proceedings, and the victim of the 1973 offence or any evidence given or received in the Tribunal hearing or in relation to proceedings which is likely to identify the person.Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – disqualifying offence of assault with intent to rape in 1973 - statutory presumption the applicant poses a risk to the safety of children – whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children – onus discharged Legislation Cited: Child Protection Legislation Amendment Act 2015 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Commission for Children and Young People Act 1998 (NSW)
Crimes Act 1900 (NSW)Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BFC v The Children’s Guardian [2014] NSWCATAD 115
BJB v NSW Office of the Children’s Guardian (No. 2) 2014 NSWCAT 164
BKE v Children’s Guardian [2015] NSWSC 523
BVT v Children’s Guardian [2016] NSWCATAD 12
BVT v Office of the Children’s Guardian [2016] NSWSC 1169
BVT v Children’s Guardian (No.2) [2016] NSWCATAD 266
BVT v Children’s Guardian (No.3) [2017] NSWCATAD 111
BVT v Office of the Children’s Guardian [2017] NSWSC 1763
Commissioner for Children and Young People v FZ [2011] NSWCA 11
Commission for Children and Young People v V [2002] NSWSC 949
R v Anunga 1976 11 ALR 412 (NTSC)Texts Cited: D Eades, “Aboriginal English and the Law”, Continuing Legal Education Department, Queensland Law Society 1992
D Eades, “Taking evidence from Aboriginal Witnesses speaking English: some sociolinguistic considerations”, Precedent, Issue 126, January/February 2015Category: Principal judgment Parties: BVT (Applicant)
Children’s Guardian (Respondent)Representation: Counsel:
Mr Jake Harris for the Respondent
Solicitors:
Mr Matthew Butt, Legal Aid Commission NSW (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 2016/00378319 Publication restriction: Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – Restriction against the publication or broadcast of information that will identify the applicant, any victims, witnesses or evidence given and received in…
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Details
- Case
- [2018] NSWCATAD 153
- Decision Date
CaseChat Overview and Summary
In the case of BVT v Children's Guardian (No. 4), the applicant, BVT, sought a working with children check clearance to work with children in Australia. BVT had previously been convicted of a disqualifying offence in 1973, an assault with intent to rape, which led to a statutory presumption under the Working with Children (Risk Management and Screening) Act 2000 that BVT posed a risk to the safety of children. The dispute centred on whether BVT had successfully discharged the onus to rebut this presumption. The case was heard by the Queensland Civil and Administrative Tribunal.
The central legal issue was whether the applicant had discharged his onus to rebut the statutory presumption that he posed a risk to the safety of children. This required an examination of the legislative framework and the evidence presented by BVT to demonstrate that he no longer posed such a risk. The Tribunal needed to consider the nature of the disqualifying offence, the time elapsed since the offence, and BVT's personal circumstances and conduct since the offence.
The Tribunal found that BVT had discharged the onus of proving that he did not pose a risk to the safety of children. The Tribunal concluded that the statutory presumption was rebutted based on the evidence presented. The applicant had demonstrated significant rehabilitation, including extensive community service, maintaining lawful conduct for many years, and providing evidence of his current suitability to work with children. The Tribunal found that the applicant's risk to the safety of children was minimal and that the presumption was not applicable in his case.
The orders of the Tribunal were that BVT's application for a working with children check clearance be granted. The matter was remitted back to the Tribunal for reconsideration, with the hearing to be conducted by the same Senior Member who determined BVT (No.1) and a different general member.
The central legal issue was whether the applicant had discharged his onus to rebut the statutory presumption that he posed a risk to the safety of children. This required an examination of the legislative framework and the evidence presented by BVT to demonstrate that he no longer posed such a risk. The Tribunal needed to consider the nature of the disqualifying offence, the time elapsed since the offence, and BVT's personal circumstances and conduct since the offence.
The Tribunal found that BVT had discharged the onus of proving that he did not pose a risk to the safety of children. The Tribunal concluded that the statutory presumption was rebutted based on the evidence presented. The applicant had demonstrated significant rehabilitation, including extensive community service, maintaining lawful conduct for many years, and providing evidence of his current suitability to work with children. The Tribunal found that the applicant's risk to the safety of children was minimal and that the presumption was not applicable in his case.
The orders of the Tribunal were that BVT's application for a working with children check clearance be granted. The matter was remitted back to the Tribunal for reconsideration, with the hearing to be conducted by the same Senior Member who determined BVT (No.1) and a different general member.
Orders
Orders of the court
”). Upon its remittal to the Tribunal, the matter was allocated to be heard by the same Senior Member who determined BVT (No.1) and a different general member.
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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