BEQ v Children's Guardian [2014] NSWCATAD 96

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BEQ v Children's Guardian [2014] NSWCATAD 96 Hearing dates: 7 April 2014 Decision date: 14 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane, Senior Member Decision: 1 The Tribunal declares that BEQ is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the two offences of indecent assault on a male person under the Crimes Act, 1900 s 81 for which he was convicted in the Sydney Quarter Sessions on 13 September 1963. 2 The Children's Guardian must grant BEQ a Working with Children Check Clearance Catchwords: Working with Children - disqualifying conviction 50 years ago - Enabling Order Legislation Cited: Child Protection (Working with Children) Act, 2012 Child Protection (Prohibited Employment) Act, 1998 Crimes Act, 1900 Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: BEQ (Applicant) CHILDREN'S GUARDIAN (Respondent) Representation: Counsel GW Moore, (Respondent ) Change Legal, (Applicant ) Crown Solicitor's Office (Respondent) File Number(s): 1410045 Publication restriction: Usual restrictions on publication of information that may identify the Applicant or any victims

reasons for decision INTRODUCTION 1In 1963 when the Applicant was 20 years of age, he was working part-time as a swimming coach and also part-time as an attendant and instructor at a ten pin bowing centre. 2On the occasion of the offences, two boys aged 13 attended at the ten pin bowling centre. It was a school day, but their school sports day had been cancelled. 3The Applicant talked to the boys about how to score ten pin bowling and then showed them a dirty joke book. He said he had some more such books and if they wanted to see them they should meet him at the staffroom at 2 o'clock and he would show them to them. At 2pm he met the boys. When he finished work he took them to a room, which had a toilet adjacent. He told them to go into the toilet cubicle and he brought in some books of naked girls. He then pulled the shorts off one boy and began fondling his penis. While he was doing that he also started fondling the penis of the other boy. They were disturbed when someone came into the room adjacent to the cubicle. When that person left, the two boys also left. 4A staff member had seen the feet of the three people under the cubicle door and reported it to the manager. The Police were called and statements were taken from the boys. The Applicant subsequently was charged with 2 counts of indecent assault on a male person and committed for trial by the Court of Petty Sessions. He pleaded guilty to both charges and was convicted of both offences I the Sydney Quarter Sessions.. 5The offences of which the Applicant was convicted were an offence under s.81 of the Crimes Act, 1900. Such an offence is included in the "disqualifying offences" specified in Clause 1 of Schedule 2 to the Child Protection (Working with Children) Act, 2012 ("the Act"). 6Under the Act a person is prohibited from working with children unless the person obtains from the Children's Guardian a Working with Children Check Clearance, and the Children's Guardian is prohibited from issuing such a certificate to a person who has been convicted of a disqualifying offence. There is an exception to that where the Tribunal issues an Enabling Order which requires the Children's Guardian to ignore the particular conviction in dealing with the person's Application for a Working With Children Check Clearance.