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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
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.