EOL v Children's Guardian

In the case of EOL v Children's Guardian, the applicant, EOL, sought a review of the decision by the Children's Guardian not to issue a Working with Children Check Clearance. This refusal was based on a past conviction for sexually touching another without consent. The matter was heard by the NSW Civil and Administrative Tribunal (NCAT). The central issue before the Tribunal was whether the Children's Guardian had correctly assessed the risk posed by EOL's past conviction, and if the decision to withhold clearance was justified under the Child Protection (Working with Children) Act 2012 (NSW).

The Tribunal examined the statutory framework, focusing on the criteria for assessing the risk posed by an individual with a criminal history. It considered whether the past conviction warranted a conclusion that EOL posed a significant risk to children. The applicant argued that the Guardian's assessment did not adequately consider the nature and circumstances of the offence, as well as the time elapsed since the conviction. The Tribunal also evaluated the risk mitigation strategies EOL had undertaken, including participation in a rehabilitation program.

After reviewing the evidence and submissions, the Tribunal found that the Children's Guardian's assessment was flawed in several respects. The Tribunal concluded that the Guardian had not sufficiently considered the specific details of the offence and the steps EOL had taken to address the underlying issues. As a result, the Tribunal held that the Guardian's decision to withhold clearance was not justified. The Tribunal ordered that EOL is not to be treated as a disqualified person and mandated the Children's Guardian to issue a Working with Children Check Clearance to EOL.