Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CNR v Children’s Guardian [2016] NSWCATAD 196 Hearing dates: 8 August 2016 Date of orders: 31 August 2016 Decision date: 31 August 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: J Anderson, Senior Member
B Field, General MemberDecision: The applicant’s application for an enabling order is dismissed.
Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person – whether applicant has discharged onus to rebut statutory presumption that he poses a risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013Cases Cited: Commission for Children and Young People v [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 11
YG and GG v Minister for Community Services [2002] NSWCA 247
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523
BJB v Office of the Children’s Guardian [2014] NSWCATAD 111
M v M [1988] HCA 68; 166 CLR 69Category: Principal judgment Parties: CNR (Applicant)
NSW Office of the Children’s Guardian (Respondent)Representation: Counsel
Solicitors:
P Guterres (Respondent)
CNR (Applicant in person)
Crown Solicitor’s Office (Respondent)
File Number(s): 1610284 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcast without the leave of the Tribunal.
REASONS FOR DECISION
Background
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On 17 March 2016, the Applicant applied to the Office of the Children’s Guardian (the Respondent) for a Working with Children Check clearance.
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On 11 April 2016, the Respondent notified the Applicant that his criminal history disclosed a disqualifying offence, namely, a conviction for sexual assault (category 4) contrary to section 61E of the Crimes Act 1900 (NSW), and as a disqualified person he must not be granted a working with children check clearance.
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On 2 May 2016, the Applicant made this application to the Tribunal for an order that he is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (an “enabling order”).
The working with children legislative scheme
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The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).
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The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act).
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Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check…
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- Case
- [2016] NSWCATAD 196
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether CNR, a disqualified person under the Working With Children Act, had effectively rebutted the statutory presumption that he posed a risk to the safety of children. The court had to consider whether CNR had demonstrated a sufficient change in circumstances to warrant a reconsideration of the presumption of risk. This involved assessing the evidence presented by CNR and determining if it met the threshold required to rebut the statutory presumption.
The court found that CNR had not discharged the onus of proving that he no longer posed a risk to children. The evidence provided was deemed insufficient to rebut the presumption that CNR posed a risk to children's safety. The court concluded that the statutory presumption remained unchallenged and that CNR had not provided adequate grounds to warrant an enabling order. Consequently, the application for an enabling order was dismissed.
Orders
Orders of the court
The applicant’s application for an enabling order is 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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