BVT v Children's Guardian

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 The refusal was based on a disqualifying offence under the repealed section 65 of the Crimes Act 1900 (NSW).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.