Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CGA v Children's Guardian [2016] NSWCATAD 241 Hearing dates: 16 June 2016 and 1 July 2016 Date of orders: 26 October 2016 Decision date: 26 October 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member
S Davison, General MemberDecision: (1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 4 November 2015 is refused and dismissed.
Catchwords: ADMINISTRATIVE LAW - Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) - disqualifying offence under section 215 of the Criminal Code Act 1899 (Qld) for carnal knowledge of a person under 16 years of age equivalent to section 61J Crimes Act 1900(NSW) – disqualifying offence due to clause 1(1)(z) and clause 1(1)(e) of Schedule 2 to the Child Protection (Working with Children) Act 2012 (NSW) – applicant was placed on probation for 2 years with no conviction recorded - definition of “conviction” under section 5 of the Child Protection (working with Children) Act 2012 (NSW) - offences of using a carriage service to make a threat to kill and convictions related to the carnal knowledge charge - assessment of risk posed by applicant - whether the applicant has proven he is not a risk to the safety of children - Tribunal not bound by the rules of evidence - onus of proof - onus of proof not discharged by applicant - enabling order refused. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1899 (Qld)
Evidence Act 1995 (NSW)Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWSC 1602
BKV v Children’s Guardian [2015] NSWCATAD 65
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34;
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Details
- Case
- [2016] NSWCATAD 241
- Decision Date
CaseChat Overview and Summary
The case of CGA v Children's Guardian involved an application for a Working with Children check clearance by the applicant, CGA, under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The applicant had a past criminal history that included a charge of carnal knowledge of a person under 16 years of age, which under the Criminal Code Act 1899 (Qld) is equivalent to an offence under section 61J of the Crimes Act 1900 (NSW). This offence was deemed disqualifying under clauses 1(1)(z) and 1(1)(e) of Schedule 2 of the Child Protection (Working with Children) Act 2012 (NSW). The applicant was placed on probation for two years without a conviction being recorded. The central legal issue was whether the applicant had proven that he is not a risk to the safety of children, particularly in light of the definition of "conviction" as per section 5 of the Act, and the related convictions stemming from the carnal knowledge charge and threats to kill.
The Court assessed the risk posed by the applicant and considered the onus of proof which, under the Act, was not on the applicant to demonstrate that they posed no risk to children. The Tribunal was not bound by the rules of evidence, yet the applicant failed to discharge the onus of proof. The applicant's past criminal history, particularly the nature of the offences, weighed heavily against the granting of an enabling order. Given the disqualifying nature of the offences and the lack of evidence to prove that the applicant was no longer a risk, the application for an enabling order was refused.
The court dismissed the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW), affirming that the applicant had not met the required standard of proving they no longer posed a risk to children. The decision underscores the importance of the applicant's past criminal conduct in determining eligibility for clearance under the Act.
The Court assessed the risk posed by the applicant and considered the onus of proof which, under the Act, was not on the applicant to demonstrate that they posed no risk to children. The Tribunal was not bound by the rules of evidence, yet the applicant failed to discharge the onus of proof. The applicant's past criminal history, particularly the nature of the offences, weighed heavily against the granting of an enabling order. Given the disqualifying nature of the offences and the lack of evidence to prove that the applicant was no longer a risk, the application for an enabling order was refused.
The court dismissed the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW), affirming that the applicant had not met the required standard of proving they no longer posed a risk to children. The decision underscores the importance of the applicant's past criminal conduct in determining eligibility for clearance under the Act.
Orders
Orders of the court
(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 4 November 2015 is refused and dismissed.
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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