GJM v Children's Guardian - [2025] NSWCATAD 48

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GJM v Children’s Guardian [2025] NSWCATAD 48
Hearing dates: 29 November 2024
Date of orders: 27 February 2025
Decision date: 27 February 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
E Hayes, General Member
Decision:
(1) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of commit act of indecency with a person aged 16 years or over contrary to s 61N(2) of the Crimes Act 1900 of which he was convicted on 11 May 2000.
(2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal orders the Children’s Guardian to grant the applicant a clearance forthwith.

Catchwords:
ADMINISTRATIVE LAW – Application for review under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – Applicant a “disqualified person” – Conviction for offence of commit act of indecency with person 16 years or over contrary to s 61N(2) (repealed) of the Crimes Act 1900 – Presumed to be a risk to the safety of children –Whether the applicant has proven to the contrary – Enabling order granted

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Summary Offences Act 2005 (Qld)

Cases Cited:
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BFX v Children’s Guardian [2014] NSWCATAD 115
BKE v Office of the Children’s Guardian [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v CVE [2017] NSWSC 1342
Commission for Children and Young People v V [2002] NSWSC 949
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CRG v Children’s Guardian [2017] NSWCATAD 295
CTE v Children’s Guardian [2018] NSWCATAD 28
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
CXZ v Children’s Guardian [2020] NSWCA 338
DAI v Children’s Guardian [2017] NSWCATAD 308
DGS v Children’s Guardian [2018] NSWCATAD 302
Director of Public Prosecutions v Smith [1991] 1 VR 63
EOL v Children’s Guardian [2021] NSWCATAD 146
Hogan v Hinch (2011) 243 CLR 506
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473
Smith v Commissioner of Police [2014] NSWCATAD 184
Tilley v Children’s Guardian [2017] NSWCA 174
VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789
ZZ v Secretary Department of Justice [2013] VSC 267

Texts Cited:
None cited

Category: Principal judgment
Parties: GJM (Applicant)
Children’s Guardian (Respondent)
Representation: Solicitors:
Applicant (Self-represented)
Crown Solicitor (Respondent)

File Number(s): 2024/00199115
Publication restriction: With the exception of expert witnesses and officers of government agencies, the…

Grounds of appeal

[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

Case: [2025] NSWCATAD 48
Decision Date: 27 February 2025

CaseChat Overview and Summary

The applicant, GJM, filed an application for review against the Children's Guardian under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The primary dispute centred around GJM's status as a "disqualified person" due to a conviction for an offence of committing an act of indecency with a person aged 16 years or over, contrary to section 61N(2) (repealed) of the Crimes Act 1900. The conviction led to a presumption that GJM posed a risk to the safety of children, which he sought to rebut. The matter was heard in the relevant tribunal, which had jurisdiction to review the decision under the Act.

The legal issues before the tribunal involved whether GJM could successfully demonstrate that he did not pose a risk to children, thereby overcoming the presumption of risk arising from his conviction. The tribunal had to consider the nature and circumstances of the offence, GJM's conduct since the conviction, and any other relevant factors that might indicate his suitability to work with children. Additionally, the tribunal needed to determine whether the application for review met the criteria for an enabling order under section 28 of the Act.

The tribunal found that GJM had provided sufficient evidence to rebut the presumption of risk. It took into account the nature of the offence, the time elapsed since the conviction, GJM's conduct and behaviour post-conviction, and other relevant mitigating factors. The tribunal concluded that GJM no longer posed a risk to children and granted the enabling order, declaring him not to be a disqualified person for the purposes of the Act concerning the specified offence. Consequently, the tribunal ordered the Children's Guardian to issue a clearance to GJM without further delay.

The tribunal's final orders included a declaration that GJM was not to be treated as a disqualified person for the offence in question and an order for the Children's Guardian to grant GJM a clearance immediately. This decision effectively allowed GJM to engage in work with children, provided he complied with any conditions set by the tribunal or the Children's Guardian.

Orders

Orders of the court

(1) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of commit act of indecency with a person aged 16 years or over contrary to s 61N(2) of the Crimes Act 1900 of which he was convicted on 11 May 2000.

(2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal orders the Children’s Guardian to grant the applicant a clearance forthwith.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	GJM v Children’s Guardian [2025] NSWCATAD 48
Hearing dates:	29 November 2024
Date of orders:	27 February 2025
Decision date:	27 February 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member E Hayes, General Member
Decision:	(1) Pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of that Act in respect of the offence of commit act of indecency with a person aged 16 years or over contrary to s 61N(2) of the Crimes Act 1900 of which he was convicted on 11 May 2000. (2) Pursuant to s 28(6) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal orders the Children’s Guardian to grant the applicant a clearance forthwith.
Catchwords:	ADMINISTRATIVE LAW – Application for review under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – Applicant a “disqualified person” – Conviction for offence of commit act of indecency with person 16 years or over contrary to s 61N(2) (repealed) of the Crimes Act 1900 – Presumed to be a risk to the safety of children –Whether the applicant has proven to the contrary – Enabling order granted
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Summary Offences Act 2005 (Qld)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BFX v Children’s Guardian [2014] NSWCATAD 115 BKE v Office of the Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v CVE [2017] NSWSC 1342 Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CRG v Children’s Guardian [2017] NSWCATAD 295 CTE v Children’s Guardian [2018] NSWCATAD 28 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 CXZ v Children’s Guardian [2020] NSWCA 338 DAI v Children’s Guardian [2017] NSWCATAD 308 DGS v Children’s Guardian [2018] NSWCATAD 302 Director of Public Prosecutions v Smith [1991] 1 VR 63 EOL v Children’s Guardian [2021] NSWCATAD 146 Hogan v Hinch (2011) 243 CLR 506 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 PGR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 Smith v Commissioner of Police [2014] NSWCATAD 184 Tilley v Children’s Guardian [2017] NSWCA 174 VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 ZZ v Secretary Department of Justice [2013] VSC 267
Texts Cited:	None cited
Category:	Principal judgment
Parties:	GJM (Applicant) Children’s Guardian (Respondent)
Representation:	Solicitors: Applicant (Self-represented) Crown Solicitor (Respondent)
File Number(s):	2024/00199115
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the…