Cex v Children's Guardian - [2016] NSWCATAD 192

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CEX v Children’s Guardian [2016] NSWCATAD 192
Hearing dates: 26 April 2016
Date of orders: 26 August 2016
Decision date: 26 August 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
P Foreman, General Member
Decision:
(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction in 1971 of the offence of indecently assaulting a male person contrary to s81 of the Crimes Act 1900.
(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.
Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – disqualifying offence was a 1971 conviction for indecently assaulting a male person – s81 of the Crimes Act 1900 - by reason of offence presumed to be a risk to 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 (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Rules 2014
Crimes Act 1900 (NSW)
Cases Cited: BGX v Children's Guardian [2014] NSWCATAD 173 BKE v Office of Children’s Guardian [2015] NSWSC 523
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011] NSW 111
Commission for Children and Young People v V [2002] NSW SC 949
R v Commission for Children and Young People [2002] NSWIRComm 101
Category: Principal judgment
Parties: CEX (Applicant)
Office of the Children’s Guardian (Respondent)
Representation:
Counsel:
K Dailly (Applicant)
I Fraser (Respondent)
Solicitors:
Crawford & Duncan Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510633
Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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.

REASONS FOR DECISION

Introduction

The applicant is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (‘the Act’) and has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a ‘disqualified person’ for the purpose of the Act. The order is known as an ‘enabling order’ and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s6 of the Act. The Children’s Guardian, who is the respondent in this matter, opposes the application for an enabling order.
The offence which brings the applicant within subsection 18(1) of the Act is that of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCATAD 192
Decision Date: 26 August 2016

CaseChat Overview and Summary

The case before the tribunal involved the applicant, Cex, contesting the decision of the Children's Guardian to refuse his application for a working with children check clearance, due to his 1971 conviction for indecently assaulting a male person under section 81 of the Crimes Act 1900. The tribunal was required to determine whether the applicant had successfully discharged the onus to rebut the statutory presumption that he posed a risk to the safety of children. The core legal issue was whether the applicant's 1971 conviction warranted continued disqualification under the Child Protection (Working with Children) Act 2012.

The tribunal found that the applicant had successfully discharged the onus of rebutting the presumption that his 1971 conviction indicated a risk to children. The tribunal examined the nature of the offence, the time elapsed since the conviction, and the applicant's subsequent conduct. Given the significant passage of time and the applicant's unblemished record since the conviction, the tribunal concluded that the risk posed by the applicant had diminished to a point where it was no longer necessary to treat him as a disqualified person. The tribunal held that the presumption under the Act had been effectively rebutted.

In light of the tribunal's findings, it declared that the applicant was not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his 1971 conviction. Consequently, the tribunal ordered the Children's Guardian to grant the applicant a working with children check clearance under subsection 28(6) of the Act. This decision underscores the tribunal's balanced approach in assessing the risk posed by historical convictions in the context of contemporary safety standards.

Orders

Orders of the court

(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction in 1971 of the offence of indecently assaulting a male person contrary to s81 of the Crimes Act 1900.

(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CEX v Children’s Guardian [2016] NSWCATAD 192
Hearing dates:	26 April 2016
Date of orders:	26 August 2016
Decision date:	26 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member P Foreman, General Member
Decision:	(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction in 1971 of the offence of indecently assaulting a male person contrary to s81 of the Crimes Act 1900. (2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – disqualifying offence was a 1971 conviction for indecently assaulting a male person – s81 of the Crimes Act 1900 - by reason of offence presumed to be a risk to 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 (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Crimes Act 1900 (NSW)
Cases Cited:	BGX v Children's Guardian [2014] NSWCATAD 173 BKE v Office of Children’s Guardian [2015] NSWSC 523 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSW 111 Commission for Children and Young People v V [2002] NSW SC 949 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	CEX (Applicant) Office of the Children’s Guardian (Respondent)
Representation:	Counsel: K Dailly (Applicant) I Fraser (Respondent) Solicitors: Crawford & Duncan Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510633
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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.