Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: BYR v Children's Guardian [2013] NSWADT 310 Hearing dates: 17 December 2013 Decision date: 17 December 2013 Jurisdiction: Community Services Division Before: S Higgins, Deputy President Decision: 1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of rape, of which he was convicted on 25 March 1971.
2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant with a working with children clearance.
Catchwords: Working with children clearance - disqualified person - presumed to be a risk to children - whether applicant has proven to the contrary Legislation Cited: Administrative Decisions Tribunal Act 1997
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Child Protection (Prohibited Employment) Act 1998 (repealed)
Commission for Children and Young People 1998Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949
IH v Commission for Children and Young People [2009] NSWADT 202
L v Commission for Children and Young People & anor [2008] NSWIRComm 195
R v Commission for Children and Young People [2002] NSWIRComm 101
RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140
RV v Commission for Children and Young People [2007] NSWADT 299Category: Principal judgment Parties: BYR (Applicant)
Children's Guardian (Respondent)Representation: Counsel
D Ward (Respondent)
BYR (Applicant in person)
Crown Solicitor (Respondent)
File Number(s): 134046 Publication restriction: S 126 of the Administrative Decisions Tribunal Act 1997 applies
reasons for decision
Introduction
The applicant, BYR, made an application under s 28 of the Child Protection (Working with Children) Act 2012 (the Act), for an enabling order that he not be treated as a 'disqualified person' for the purposes of that Act and be granted a clearance to work with children. The applicant is a 'disqualified person' by reason of his conviction, in March 1971, of rape: see subs 18(1) of the Act. At the time, the applicant was 21 years of age.
Today, the applicant is a minister of religion in his local congregation. With the coming into force of the Act, the applicant was required to obtain a working with children clearance check if he wished to continue with this work: see subs 6(2) of the Act.
As required, the applicant made an application, to the Children's Guardian, for such a clearance under s 13 of the Act.
On 27 September 2013, the Children's Guardian determined not to grant the applicant with a clearance as a result of his 1971 conviction: see subs 18(1)(a) of the Act.
On 28 October 2013, the applicant, as he was entitled to do, made an application, under s 28 of the Act, to the Tribunal, for an enabling…
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- Case
- [2013] NSWADT 310
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the applicant could successfully challenge the presumption of risk to children arising from his past conviction. This involved an examination of the legislative framework, particularly the Child Protection (Working with Children) Act 2012. The court needed to determine if the applicant had demonstrated that he was not a risk to children, thereby justifying the granting of a working with children clearance.
The court found that the applicant had satisfied the requirements to rebut the presumption of risk. The evidence presented demonstrated that the applicant had not posed a risk to children in the intervening years since his conviction. Consequently, the presumption of risk was not applicable, and the applicant was not a disqualified person under the Act. The court ordered that the applicant should not be treated as a disqualified person and mandated the Children's Guardian to issue a working with children clearance to the applicant.
In accordance with the judgment, the court declared that the applicant was not to be treated as a disqualified person in respect of his 1971 rape conviction. Furthermore, the Children's Guardian was directed to grant the applicant a working with children clearance under the provisions of the Child Protection (Working with Children) Act 2012.
Orders
Orders of the court
1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of rape, of which he was convicted on 25 March 1971.
2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant with a working with children clearance.
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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