Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CLK v Children's Guardian [2016] NSWCATAD 183 Hearing dates: 6 May 2016 Date of orders: 16 August 2016 Decision date: 16 August 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member
R Royer, General MemberDecision: (1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 22 February 2016 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 61L of the Crimes Act 1900 (NSW)for indecent assault upon his then wife – conviction in Local Court and on appeal to District Court discharge with a recognizance under s556A of the Crimes Act–treated as a conviction under section 5 Child Protection (Working with Children) Act 2012 (NSW) - common assault conviction on a female victim in a separate incident - 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Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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)
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; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
Carr v Simnovic (1980) 26 SASR 263
Children’s Guardian v BQJ [2016] NSWSC 869
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Hall v New South…
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- AGLC
- CLK v Children's Guardian [2016] NSWCATAD 183
- Case
- [2016] NSWCATAD 183
- Decision Date
CaseChat Overview and Summary
CLK, the applicant, sought an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) to obtain a Working with Children check clearance. This application arose after he was previously convicted of a disqualifying offence under section 61L of the Crimes Act 1900 (NSW) for indecent assault upon his then wife, and subsequently discharged with a recognizance under s556A of the Crimes Act. This conviction was treated as a conviction under section 5 of the Child Protection (Working with Children) Act 2012. Additionally, CLK had a common assault conviction on a female victim in a separate incident. The dispute centred on whether CLK had proven that he did not pose a risk to the safety of children, and thus qualified for clearance. The application was heard by the NSW Civil and Administrative Tribunal (NCAT), which held that it was not bound by the rules of evidence, but instead applied principles of natural justice and the merits of the case.
The primary legal issue before the NCAT was to determine whether CLK had discharged the onus of proving that he did not pose a risk to the safety of children. This involved assessing CLK's past conduct and character, and evaluating the risk he might pose to children in future interactions. The NCAT considered the nature of CLK's past offences and the circumstances surrounding them, as well as his conduct since the convictions. The Tribunal concluded that CLK had not demonstrated that he was no longer a risk to children, as he had not provided sufficient evidence to convince the Tribunal of his changed circumstances or the low likelihood of reoffending.
The NCAT's reasoning was grounded in the principles of natural justice and the merits of the case. The Tribunal gave careful consideration to the evidence presented by CLK, which included character references and evidence of his rehabilitation efforts. However, the Tribunal found that CLK's past conduct, particularly the nature of the offences and the vulnerability of the victims, indicated a significant risk to children. The Tribunal emphasised that the onus was on CLK to prove, on the balance of probabilities, that he was no longer a risk. Given the seriousness of the offences and the lack of compelling evidence of rehabilitation, the NCAT concluded that CLK had not discharged this onus.
The NCAT dismissed CLK's application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012. The Tribunal found that CLK had not proven that he did not pose a risk to the safety of children, and therefore, he was not eligible for clearance. The application was refused and dismissed, with no orders made in favour of CLK.
The primary legal issue before the NCAT was to determine whether CLK had discharged the onus of proving that he did not pose a risk to the safety of children. This involved assessing CLK's past conduct and character, and evaluating the risk he might pose to children in future interactions. The NCAT considered the nature of CLK's past offences and the circumstances surrounding them, as well as his conduct since the convictions. The Tribunal concluded that CLK had not demonstrated that he was no longer a risk to children, as he had not provided sufficient evidence to convince the Tribunal of his changed circumstances or the low likelihood of reoffending.
The NCAT's reasoning was grounded in the principles of natural justice and the merits of the case. The Tribunal gave careful consideration to the evidence presented by CLK, which included character references and evidence of his rehabilitation efforts. However, the Tribunal found that CLK's past conduct, particularly the nature of the offences and the vulnerability of the victims, indicated a significant risk to children. The Tribunal emphasised that the onus was on CLK to prove, on the balance of probabilities, that he was no longer a risk. Given the seriousness of the offences and the lack of compelling evidence of rehabilitation, the NCAT concluded that CLK had not discharged this onus.
The NCAT dismissed CLK's application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012. The Tribunal found that CLK had not proven that he did not pose a risk to the safety of children, and therefore, he was not eligible for clearance. The application was refused and dismissed, with no orders made in favour of CLK.
Orders
Orders of the court
(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 22 February 2016 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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