GYV v Children's Guardian

[2025] NSWCATAD 208

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GYV v Children’s Guardian [2025] NSWCATAD 208

Hearing dates:

23 June 2025

Date of orders:

19 August 2025

Decision date:

19 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr L Kirk, Senior Member
A Limbury, General Member

Decision:

(1) Pursuant to section 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 the Child Protection (Working with Children) Act 2012 in respect of his conviction for two counts of assault with intent to commit rape in contravention of s 49 of the Criminal Law Consolidation Act, 1935-1966 (SA), which is equivalent to s 61D of the Crimes Act 1900 (NSW).

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

Catchwords:

ADMINISTRATIVE LAW — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012

Legislation Cited:

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1910

Criminal Law Consolidation Act, 1935-1966 (SA)

Cases Cited:

AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69

BKE v Office of the Children's Guardian [2015] NSWSC 523

Children’s Guardian v CVE [2017] NSWSC 1342

CGR v Children’s Guardian [2017] NSWCATAD 295

Commission for Children and Young People v V [2002] NSWSC 949

Commissioner for Children and Young People v FZ [2011] NSWCA 111

CTE v Children’s Guardian [2018] NSWCATAD 28

CXZ v Children’s Guardian [2020] NSWCA 338

CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

DAI v Children’s Guardian [2017] NSWCATAD 308

ECQ v The Children’s Guardian [2021] NSWCATAD 217

FFB v Children’s Guardian [2022] NSWCATAD 71

Office of the Children’s Guardian v EQE [2022] NSWSC 871

OYJ v Secretary to the Department of Justice &

Regulation (Review and Regulation) [2019] VCAT 33

Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143

PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514

R v Commission for Children and Young People [2002] NSWIRComm 101

VQB v The Secretary to the Department of Justice [2013] VCAT 789

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GYQ (Applicant)
Children’s Guardian (Respondent)

Representation:

HBD (Agent) – (Applicant)

Counsel:
A Mykkeltvedt (Respondent)

Solicitors:
Crown Solicitor

File Number(s):

2025/00149770

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the disclosure by way of 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.

REASONS FOR DECISION

Introduction

1. On 10 July 2024 the Applicant, who has been given the pseudonym GYV, applied for a working with children check clearance (WWCCC) under the Child Protection (Working with Children) Act 2012 (the WWC Act). The Applicant applied for a clearance under the WWC Act so that he can continue to live in his daughter’s home while she acts as the authorised carer of her two step-grandchildren.

2. On 24 March 2025 the Children’s Guardian (Respondent) refused the application on the basis that the Applicant is a “disqualified person” within the meaning of s 18(1) of the WWC Act because in January 1968 he was convicted of a “disqualifying offence” specified in Schedule 2 of the WWC Act (Refusal decision).

3. On 16 April 2025, the Applicant applied for an administrative review seeking review of the Refusal decision. His application has been treated by the Respondent and the Tribunal as an application for an enabling order and for an order to be granted a clearance under ss 28(1) and (6) of the WWC Act, rather than an application for administrative review. There is no dispute that the Applicant is eligible to make this application, and that the Tribunal has jurisdiction to deal with this matter under the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

4. On 13 June 2025, the Respondent filed written submissions in which it indicated it supported the Applicant’s application for the requested orders.

Non-publication order

5. Due to the sensitive nature of these proceedings, an order was made under subsection 64(1) of the NCAT Act that, 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. To give effect to this order, the pseudonym 'GYV' has been used for the Applicant's name, and the names of persons (other than expert witnesses and officers of government agencies) have not been disclosed.

Legislative framework

6. The object of the WWC Act is to protect children by requiring persons engaged in child-related work to obtain a WWCCC, or an enabling order declaring that a person is not to be treated as a disqualified person for the purposes of granting such a clearance: see ss 3, 28 (1) of the WWC Act. Section 4 of the WWC Act provides that the safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act.

7. Section 18 relevantly provides that the Children’s Guardian must not grant a WWCCC to “disqualified persons”:

Determination of applications for clearances

(1)   The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons)—

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult …

8. Schedule 2 specifies “disqualifying offences” for disqualified persons under the Act. It relevantly provides:

1      Specified offences

(1)    The following offences are specified—

…

(d) an offence under section 61B, 61C, 61D, 61E or 61F of the Crimes Act 1900,

…

(f)   the common law offence of rape or attempted rape,

(g) an offence under section 65A of the Crimes Act 1900,

…

(z)      an offence under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence listed in this clause,

(aa)      an offence an element of which is an intention to commit an offence of a kind listed in this clause

…

9. Section 28 provides that the Tribunal may make an enabling order declaring that a disqualified person not be treated as such for the purposes of the WWC Act:

Orders relating to disqualified and ineligible persons

(1)   The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2)   The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3)   A disqualified person may make an application under this section only if—

(a)   the person has been refused a working with children check clearance, or

(b)   the person’s clearance has been cancelled under section 23,

because the person is a disqualified person.

(4)   The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5)   An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6)   If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(6A)   To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children’s Guardian in accordance with the Tribunal’s order.

(7)   In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8)    An enabling order may not be made subject to conditions.

10. In BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 (BKE), Beech-Jones J observed that s 28 confers two relevant powers on the Tribunal, namely a power to make an enabling order in respect of a disqualified person, and a power to order the Respondent to grant a person a WWCC clearance under s 28(6). His Honour stated that the effect of s 28(7) is that an Applicant must displace a presumption that they pose a risk to the safety of children.

11. Section 30 lists the matters the Tribunal must consider when determining an application for an enabling order:

Determination of applications and other matters

(1)   The Tribunal must consider the following in determining an application under this Part—

(a)   the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b)   the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c)    the age of the person at the time the offences or matters occurred,

(d)    the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e)    the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f)    whether the person knew, or could reasonably have known, that the victim was a child,

(g)   the person’s present age,

(h)   the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

(i)   the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(i1)   any order of a court or tribunal that is in force in relation to the person,

(j)   any information given by the applicant in, or in relation to, the application,

(j1)   any relevant information in relation to the person that was obtained in accordance with section 36A,

(k)   any other matters that the Children’s Guardian considers necessary.

(1A)   The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that—

(a)   a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b)   it is in the public interest to make the order.

Material before the Tribunal

12. The Respondent relied on the following documents:

1. Bundle of Documents filed on 15 May 2025 (R1)

2. Bundle of Documents filed on 13 June 2025 (R2).

13. The Applicant relies on his application and the following additional documents:

1. His written statement, undated but understood to have been prepared in April 2025.

2. Letter from his General Practitioner Dr MO

3. Character references from his family members, JC, LH, CC, KH, SC and CR.

Consideration

Disqualifying offences

14. On 15 January 1968, the Applicant pleaded guilty to two counts of assault with intent to commit rape. ^[1] The offences were committed against two different victims, aged 16 and 18 years old. They occurred on separate dates in July and October 1967. According to the indictment, the Applicant was charged under then s 49 of the Criminal Law Consolidation Act, 1935-1966 (SA) (CLC Act (SA)). ^[2]

    1. R2, p 4.

    2. R2, p 6.

15. On 26 January 1968, her Honour Justice Mitchell of the Supreme Court of South Australia found the Applicant guilty and sentenced him to “be imprisoned and kept to hard labour for one year and 10 calendar months on each count concurrently”. ^[3]

    3. R2, p 5.

16. The Applicant’s criminal histories, produced by both South Australia and the Australian Criminal Intelligence Commission records his conviction as “assault with intent to commit a felony”. ^[4] The Respondent submitted that, given the indictments, pleas, and sentencing judgment contained in the Court file, along with a contemporaneous report in the SA Police Gazette also describing the conviction as assault with intent to commit rape, ^[5] the Tribunal should find the descriptions of the offences in the Applicant’s criminal histories are inaccurate. The Tribunal accepts this submission and finds that the offences for which the Applicant was convicted were assault with intent to commit rape. These offences fall within the scope of a “disqualifying offence” specified in Schedule 2 of the WWC Act.

    4. R1, p 3.

    5. R1, p 5.

17. In 1968, s 65 of the Crimes Act 1900 (NSW) (the Crimes Act), provided:

Attempt etc to commit rape

Whosoever attempts to commit, or assaults any female with intent to commit, the crime of rape, shall be liable to penal servitude for fourteen years.

18. In 1981, s 65 of the Crimes Act was repealed. ^[6] Section 65 is not specified in sch 2 of the WWC Act; however, cl 1B of pt 1A of sch 11 to the Crimes Act provides, relevantly, as follows (emphasis added):

In any other Act or instrument made under an Act—

…

(b) a reference to attempted rape, attempting to commit rape, attempting to commit the crime of rape, attempting to commit the offence of rape or an offence under section 65 is to be read and construed as a reference to the offence of attempting to commit an offence under section 61B, 61C or 61D,

6. Crimes (Sexual Assault) Amendment Act 1981 (NSW) Sch 1, cl 7.

19. Schedule 2 to the WWC Act specifies, for the purposes of s 18(1), each of ss 61B, 61C, 61D and 61F of the Crimes Act. ^[7] Relevantly, s 61D provided (before its repeal ^[8] ):

Sexual assault category 3—sexual intercourse without consent

(1)   Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse shall be liable to penal servitude for 7 years or, if the other person is under the age of 16 years, to penal servitude for 10 years.

7. WWC Act Sch 2.1(1)(d).

8. Crimes (Amendment) Act 1989.

20. The Tribunal is satisfied the legislature conceived of an offence contrary to s 65 of the Crimes Act, as in force in 1968, as equivalent to an offence of attempting to commit an offence contrary to (as applicable) ss 61B, 61C or 61D. It follows that an offence committed under s 49 of the CLC Act (SA) is an offence against a law of another State (South Australia) which would, if committed in NSW, constitute an offence against this clause, such that it is caught by cls 1(1)(d) and 1(1)(z) of Schedule 2 to the WWC Act. In addition, an element of the offence of which the Applicant was convicted was an intention to commit the offence of rape, such that it would be caught by cls 1(1)(f), 1(1)(z) and 1(1)(aa) of Schedule 2 of the WWC Act.

21. As noted above, Schedule 2, relevantly cl (1), identifies the offences that are specified to be disqualifying offences for the purposes of s 18(1) of the WWC Act. Clause 1(z) provides that a disqualifying offence is “an offence under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence listed in this clause”.

22. When the Applicant was tried for the two offences that resulted in convictions, he was also tried with a third count of assault with attempt to commit rape. He did not plead guilty to this offence and this charge was ultimately discontinued. Had the Applicant been convicted, this would have been another “disqualifying offence” for the purposes of the WWC Act.

23. The Applicant has two other criminal convictions: ^[9]

• On 12 April 1965: “behave in disorderly or offensive manner in a public place” for which he was fined.

• On 16 October 1997: obtaining a benefit that is only partly payable or not payable, for which he was sentenced to 6 months periodic detention and a reparation order of $807.10.

  9. R1 Tab 2, p 4.

24. The Respondent submitted, and the Tribunal accepts, that these criminal offences are not of serious concern in the context of the WWC Act as they appear to be non-violent offences that did not involve crimes against children.

Should an enabling order be made under s 28?

25. Due to his convictions for the “disqualifying offences”, it is presumed that the Applicant poses a risk to the safety of children and the burden is on him to displace the statutory presumption in s 28(7) of the Act.

26. To determine whether an enabling order should be made under s 28(1) of the Act, the Tribunal must first assess whether it is satisfied that the Applicant does not pose a risk to the safety of children. In making this determination, the Tribunal must have regard to the mandatory considerations in s 30(1). If the Tribunal is satisfied that the Applicant does not pose a risk to the safety of children, it must then assess whether it is satisfied that both the “reasonable person” test and the “public interest” test in the first and second limbs under s 30(1A) of the Act have been met: FFB v Children’s Guardian [2022] NSWCATAD 71 at [21].

27. The Tribunal’s approach to the exercise of its jurisdiction under section 28 is protective not punitive: Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 (AYU) at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

Does the Applicant pose a risk to the safety of children?

28. “Risk to the safety of children” is defined in s 5B of the WWC Act:

Meaning of “risk to the safety of children”

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children

29. The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949 at [42]:

[O]ne does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word ‘risk’ with the words that follow, namely ‘to the safety of children’…

30. His Honour’s consideration of the meaning of risk has been cited with approval in a number of cases before the Tribunal and the NSW Supreme Court: CTE v Children’s Guardian [2018] NSWCATAD 28 at [30]; BKE at [26] and AYU at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a “real and not fanciful” risk to the safety of children: CXZ v Children’s Guardian [2020] NSWCA 338 at [26].

Mandatory considerations - s 30(1)

31. The Tribunal has considered each of the considerations set out in s 30(1) of the WWC Act. Having regard to these considerations and the evidence before the Tribunal, we are satisfied that the Applicant has displaced the presumption of risk for the following reasons:

32. (1)   The disqualifying offences were extremely serious. We respectfully note the observations of Mitchell J that they would have been “a horrifying experience for each of the girls involved” ^[10] and if the Applicant repeated his past behaviour the impact on his victims would undoubtedly be traumatic.

    10. R2, p 5.

31. (2)   The disqualifying offences were committed 58 years ago. There is no evidence of the Applicant engaging in violent or sexually abusive behaviour since 1967. The available evidence suggests that he has lived a prosocial life, with his family members describing him positively in their character references as a loving and respected parent.

32. (3)The Applicant was 20 years old at the time of the disqualifying offences. He is now aged 78 years. The victims were 16 and 18 years old when they were attacked by the Applicant and he was not known to either of them. It is reasonably likely that the Applicant would have been aware of the possibility that they were under the age of 18 when he committed the offences against them.

33. (4)   The Applicant has had a very lengthy period of non-offending and there is no evidence that he has engaged in violent or sexually predatory behaviour since he was convicted and sentenced for the disqualifying offences. This evidence indicates that it is unlikely he would repeat his offending behaviour.

34. (5)   The Applicant’s physical capacity to engage in behaviour similar to the disqualifying offences appears limited. He is a man of advanced years and the evidence provided by his general practitioner is that he has several chronic health conditions which require monitoring and occasional blood transfusions.

35. (6)   The Applicant’s written evidence does not address the disqualifying offences in detail or outline why he now understands that this behaviour was wrong. He has expressed a degree of remorse, including the statement “I take full responsibility for my past actions and I deeply regret any harm caused”.

36. (7)   The character references in support of the Applicant do not refer specifically to his criminal offending, and it is unclear whether it is known to the authors. However, at least four of the statements are provided by family members who have known the Applicant all their lives and have experienced being children in his care. Their positive opinion of the Applicant is further evidence that he has not repeated the offending behaviour that led to the convictions almost 60 years ago.

37. The Tribunal is satisfied that the Applicant has rebutted the presumption in s 28(7) of the WWC Act and does not pose a real and appreciable risk to the safety of children. Having found that the Applicant does not pose a risk to children, the Tribunal is required to consider the supplementary tests in subsection 30(1A) of the WWC Act.

Reasonable person test: s 30(1A)(a)

40. The Tribunal must not make an enabling order unless it is satisfied that a “reasonable person” would allow their own child to have direct, unsupervised contact with the Applicant while engaging in any child related work. This is an objective test: PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [57].

41. The “reasonable person” is taken to have knowledge of the index offence, the circumstances surrounding the offence, the Applicant’s criminal history and the length of time since these events. While the “reasonable person” would “not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed”, the reasonable person also would not “put aside all scepticism and reasonable caution in some over-optimistic attempt to facilitate rehabilitation”: VQB v The Secretary to the Department of Justice [2013] VCAT 789 at [36] cited in DAI v Children’s Guardian [2017] NSWCATAD 308 at [90]; CGR v Children’s Guardian [2017] NSWCATAD 295 at [94].

42. The Respondent submitted that the legislature intended to convey the additional caution that a parent, even a reasonable one, would take when assessing an acceptable level of risk to their own child, as opposed to considering a theoretical risk to children in general. This was accepted by the Victorian Civil and Administrative Tribunal when considering a similar provision under the Victorian legislation in OYJ v Secretary to the Department of Justice & Regulation (Review and Regulation) [2019] VCAT 33 at [94]:

Because sub-section 26A(4)(a) says “a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work” (emphasis added), and as a matter of human nature people are more cautious and concerned about their own child, than about others’ children, the subsection places a more onerous test on an applicant for an Assessment Notice, than if the subsection had said a reasonable person would allow “a child to have direct contact with the applicant …”.

43. In this case, a reasonable person would be aware that the Applicant had been convicted of two counts of assault with attempt to commit rape and was charged with a third count. The reasonable person would likely be very concerned about the Applicant’s apparently impulsive attacks on girls and young women in a public place and have some concern in relation to the Applicant’s limited acknowledgement of the seriousness of his offending behaviour.

44. However, the reasonable person, when assessing the risk to their own child, would have regard to the significant passage of time since the Applicant’s offending, the very lengthy period of non-offending, and that there is no evidence that the Applicant has engaged in violent or sexually predatory behaviour in the nearly 60 years since he committed the offences that led to the two convictions. The reasonable person would also have regard to the Applicant’s positive relationships with his daughters and grand-daughters and the support provided by his family. A reasonable parent would acknowledge that the Applicant’s age and health are both factors that, from a practical perspective, significantly reduce the level of risk of him repeating the same or similar offending behaviour.

45. Having regard to these considerations, the Tribunal is satisfied that the first limb of s 30(1A) of the Act has been met.

Public interest test: s 30(1A)(b)

46. The matters to be considered by the Tribunal in determining whether it is in the public interest to grant an order is not set out in the WWC Act. In considering the public interest test the Tribunal has had regard to the subject matter, scope, and purpose of the Act, and specifically the paramount consideration in the operation of the Act in s 4, and the following Tribunal and judicial observations in relation to the test in the same or similar legislative contexts.

47. In CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 the Tribunal stated at [75]:

The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

48. In ECQ v The Children’s Guardian [2021] NSWCATAD 217 at [44]-[45], the Tribunal made the following observations:

In line with Hogan’s case, this Tribunal must assess the public interest in granting an applicant a clearance by reference to the purpose of the Act as a whole. The purpose can be ascertained from the object and paramount consideration of the Act as set out in ss 3 and 4, namely, the protection of children from abuse by ensuring that those who engage in child-related employment have a WWCC clearance.

When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY’s case at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary to the Department of Justice [2013] VSC 267 at [202] and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY’s case at [75].

49. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143, at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. It stated:

As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.

In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.

50. The Applicant seeks a WWCC clearance so that he can continue to live in his daughter’s home while she acts as an authorised carer for her two step-grandchildren. The Tribunal accepts the Respondent’s submission that it is clearly in the public interest for children in state care to live with family members rather than be placed in foster care. We also accept that there is a public interest in elderly individuals being able to access primary care in their homes, whilst acknowledging that this public interest is less directly relevant to the objectives of the WWC Act.

51. On the basis of the evidence before the Tribunal, we are satisfied that the second limb to s 30(1A) of the Act has been met.

52. In BKE, Beech-Jones J observed at [23] that ‘[t]he structure of s 28 contemplates that the making of an enabling order and the granting of a clearance certificate are separate steps.’ However, as His Honour recognised, ‘in most cases if [the Tribunal] makes an enabling order it proceeds to grant the person a clearance.’ In the Applicant’s circumstances, the Tribunal is satisfied that an order should be made under s 28(6) of the WWC Act to grant the Applicant a WWCCC.

Conclusion

53. The Tribunal is satisfied that it is appropriate to make an enabling order declaring that the Applicant is not to be treated as a disqualified person for the purposes of the WWC Act in respect of the disqualifying offences, and to order the Children’s Guardian to grant the Applicant a WWCCC.

Order

1. The Tribunal declares that the Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction for two counts of assault with intent to commit rape in contravention of s 49 of the Criminal Law Consolidation Act, 1935-1966 (SA), which is equivalent to s 61D of the Crimes Act 1900 (NSW) …

2. The Children’s Guardian is to grant a working with children check clearance to the Applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).

**********

Endnotes

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 August 2025