Tilley v Children's Guardian

The applicant appealed to the Court of Appeal of New South Wales from a decision of the Supreme Court of New South Wales, which had affirmed a decision of the NSW Civil and Administrative Tribunal (NCAT). NCAT had affirmed the refusal of the Children's Guardian to grant the applicant a clearance to work with children. The dispute concerned whether the applicant was subject to an assessment requirement under the *Child Protection (Working with Children) Act 2012* (NSW) and whether NCAT had applied the correct legal test and reversed the onus of proof when determining if the applicant posed a risk to children.

The primary legal issues before the Court of Appeal were whether the applicant was subject to an assessment requirement within the meaning of section 14 of the *Child Protection (Working with Children) Act 2012* (NSW), and whether NCAT erred in its application of section 18(2) of the Act. Specifically, the court considered whether the phrase "proceedings have been commenced" in Schedule 1, clause 1(1) of the Act applied to the applicant, given that proceedings against him for disqualifying offences had been discontinued. The applicant also argued that NCAT had incorrectly reversed the onus of proof by requiring him to demonstrate he did not pose a risk, rather than the Children's Guardian proving he did.

The Court of Appeal held that the phrase "proceedings have been commenced" in the context of Schedule 1, clause 1(1) of the Act referred to the initiation of proceedings, and that the discontinuation of proceedings meant they were no longer "commenced" for the purposes of triggering the assessment requirement. However, the court found that NCAT had correctly applied the law in relation to the onus of proof under section 18(2), which requires the Children's Guardian to be satisfied that the applicant poses a risk to children. The court determined that NCAT had not reversed the onus of proof and had applied the correct legal test.

The appeal was dismissed. The Court of Appeal also made orders revoking a non-publication order to the extent that it prohibited publication of material identifying the appellant, but maintained the prohibition on identifying his previous fiancée or any other complainant. The appellant was ordered to pay the respondent's costs.