FFB v Children's Guardian

In the case of FFB v Children's Guardian, the applicant sought an enabling order to prevent being treated as a disqualified person under the Child Protection (Working with Children) Act 2012 (NSW) concerning an offence of filming a person engaged in a private act without consent, which was a criminal offence under s 91K(1) of the Crimes Act 1900 (NSW). The applicant had pleaded guilty and was discharged under a Conditional Release Order. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the applicant could be considered a disqualified person under the Child Protection (Working with Children) Act 2012 (NSW) in relation to the specified offence, given the nature of the discharge and the applicant's status under the Crimes (Sentencing Procedure) Act 1999 (NSW). The court also had to determine whether the decision of the Children's Guardian to cancel the applicant's working with children check clearance was lawful and appropriate.

The court found that the applicant's discharge under a Conditional Release Order, which included specific conditions and a supervision period, did not equate to a conviction for the purposes of the Child Protection (Working with Children) Act 2012 (NSW). The court held that the applicant should not be treated as a disqualified person for the offence in question. Consequently, the decision of the Children's Guardian to cancel the applicant's working with children check clearance was set aside, and the court ordered that the Children's Guardian must grant the applicant a working with children check clearance forthwith.