CLK v Children's Guardian

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.