CSZ v Children's Guardian

In the case of CSZ v Children's Guardian, the applicant sought a working with children check clearance through an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The applicant had been convicted of carnal knowledge in 1976, an offence that would ordinarily disqualify him under section 71 of the Crimes Act 1900 (NSW). The matter was heard by the NSW Civil and Administrative Tribunal, which was tasked with determining whether the applicant had proven that he was not a risk to the safety of children.

The primary legal issue before the Tribunal was whether the applicant had successfully discharged the onus of proving that he was not a risk to children, thereby justifying an enabling order. Given the historical nature of the offence and the applicant's subsequent behaviour, the Tribunal needed to assess the risk posed by the applicant in the context of his current circumstances. The Tribunal was also required to consider the standard of proof applicable in this context, given that it was not bound by the rules of evidence.

The Tribunal found that the applicant had discharged the onus of proof by demonstrating that he was not a risk to the safety of children. The Tribunal took into account the passage of time since the offence, the applicant's conduct since the conviction, and the lack of any other relevant incidents. The Tribunal concluded that the applicant's past offence did not necessarily indicate a current risk, and granted the enabling order. This decision recognised 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 the 1976 offence.

The Tribunal's order declared 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 relation to the offence of carnal knowledge of which he was convicted in 1976. This outcome reflects the Tribunal's determination that the applicant had met the necessary threshold to demonstrate that he posed no current risk to children, thereby allowing him to obtain the required working with children check clearance.