DLU v Children's Guardian

Case [2019] NSWCATAD 8


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DLU v Children's Guardian [2019] NSWCATAD 8
Hearing dates: 24 August 2018
Date of orders: 04 January 2019
Decision date: 04 January 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
S Davison, General Member
Decision:

(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 14 May 2018 is refused and dismissed.
(2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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) - where disqualifying offence under section 91H(2) of the Crimes Act 1900 (NSW) disseminate child abuse material – assessment of risk posed by applicant - whether the applicant has proven he is not a risk to the safety of children - where onus of proof not discharged by applicant - where 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Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)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)
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Child Protection (Working with Children) and Other
Child Protection Legislation Amendment Act 2016 (NSW)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
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
BGX v Children’s Guardian [2014] NSWCATAD 173
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

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AGLC
Dlu v Children's Guardian [2019] NSWCATAD 8
Case
[2019] NSWCATAD 8
Decision Date

CaseChat Overview and Summary

The decision in DLU v Children's Guardian was concerned with an application for a Working with Children Check Clearance. The applicant, DLU, sought to obtain the clearance by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The application was opposed by the Children's Guardian on the basis that DLU had previously been convicted of disseminating child abuse material, which constituted a disqualifying offence under section 91H(2) of the Crimes Act 1900 (NSW). The dispute was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issue before the court was whether DLU had discharged the onus of proving that he was not a risk to the safety of children. In assessing the risk, the court considered the nature of the offence, the age and vulnerability of the victims, and any evidence of rehabilitation. The court was required to determine whether DLU's past conduct justified denying him the right to work with children without undergoing the standard clearance process.

The court held that DLU had not discharged the onus of proving that he was not a risk to the safety of children. The court found that DLU's previous conviction for disseminating child abuse material, which involved the distribution of images depicting the sexual abuse of children, constituted a serious breach of the trust required for working with children. The court was not persuaded by DLU's arguments regarding his rehabilitation or the possibility of obtaining employment without a Working with Children Check Clearance. The court concluded that the risk posed by DLU to the safety of children was too significant to grant the enabling order. Consequently, the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) was dismissed.

In addition to dismissing the application, the court made an order prohibiting the publication or broadcast of the names of any person mentioned in the proceedings, except for expert witnesses and officers of government agencies. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013, to protect the identities of individuals involved in the case, in accordance with the law.

Orders

Orders of the court

(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 14 May 2018 is refused and dismissed.

(2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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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