BDY v Children's Guardian [2014] NSWCATAD 110

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BDY v Children's Guardian [2014] NSWCATAD 110 Hearing dates: 23 June 2014 Decision date: 23 June 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane, Senior Member Decision: 1. The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the four offences found proved by the District Court of NSW at Port Macquarie on 8 December 2006. 2 The Respondent must grant the Applicant a Working with Children Check Clearance. Catchwords: Enabling Application under Child Protection (Working with Children) Act, 2012 Legislation Cited: Child Protection (Working with Children) Act, 2012 Category: Principal judgment Parties: BDY (Applicant) Children's Guardian (Respondent) Representation: Counsel H Packer, (Applicant) R Lee, (Respondent) Crown Solicitor Office, (Respondent) File Number(s): 1410015 Publication restriction: Usual prohibition against publication of information identifying applicant or victim

reasons for decision

INTRODUCTION 1On 5 July 2006 in the Kempsey Local Court the Applicant pleaded not guilty but was convicted on four counts of committing an act of indecency with another person in November 2005. Two of those counts related the person being under 16. 2The Applicant appealed to the District Court in relation to the convictions and the fines totalling $3,000.00. The Appeal was heard by the District Court of NSW at Port Macquarie on 8 December 2006 and the Judge decided not to record a conviction in regard to any of the charges. The Judge found the offences proved but having regard to the good character of the Applicant, without proceeding to a conviction he released the Applicant on a good behaviour bond for a period of 6 months. The conditions of the Bond required that he appear before Court if called upon to do so at any time, that he be of good behaviour, and that he advise the Registrar of the Court at Newcastle of any change of residential address. 3The Applicant and members of his family are members of the Jehovah's Witnesses Church. He has been a member of the Church since he was about 13. He was a Leader in the congregations at Mudgee for 10 years, Raymond Terrace for 4 years and from 1991 in the Bowral area. 4Upon receiving notification of the charges, the Jehovah's Witnesses stood down the Applicant from his position as an Elder of the congregation. 5The Applicant in his statement to the Tribunal says that he has consistently denied the allegations and continues to do so. That may be so, but on Appeal to the District Court, the offences were found proved. 6The charges were under ss.61N(1) and 61N(2) of the Crimes Act, 1900. Offences under those subsections come within Clause 1(1) of Schedule 2 of the Child Protection (Working with Children) Act, 2012 ("the Act"). As a consequence they are disqualifying offences and the Children's Guardian is prohibited from issuing a Working with Children Check Clearance to the Applicant. 7On 7 January 2014 his Application to the Children's Guardian for a Working with Children Check Clearance was refused by the Children's Guardian, as it was required to do by the legislation, on the basis of the four offences found proved by the District Court of NSW at Port Macquarie.