BYU v Children's Guardian [2014] NSWCATAD 119

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BYU v Children's Guardian [2014] NSWCATAD 119 Hearing dates: 20 March 2014 Decision date: 26 August 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The applicant's application is refused/dismissed Catchwords: ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - disqualifying offence committed in 1998 - by reason of offence presumed to be a risk to children - whether applicant has discharged his onus to establish the contrary Legislation Cited: Administrative Decisions Tribunal Act 1997 Children Protection (Offenders Registration) Act 2000 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 (repealed) Civil and Administrative Tribunal Act 2013 Commission for Children and Young People 1998 Cases Cited: Commission for Children and Young People [2002] NSWSC 949 Category: Principal judgment Parties: BYU (Applicant) NSW Office of Children, Children's Guardian (Respondent) Representation: V Hartstein (Respondent) J McClintoch (Applicant) File Number(s): 134047 Publication restriction: Pursuant to subsection 75(2) of the Administrative Decisions Tribunal Act 1997, the name of the applicant and the name of the applicant's children are not to be published without the leave of the Tribunal

reasons for decision

Introduction 1The applicant is a 'disqualified person' under subs 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an 'enabling order', pursuant to s 28 of that Act, declaring that he not be treated as a 'disqualified person' so that he can be granted a clearance to work with children. 2Due to the sensitive nature of these proceedings, an order was made, under subsection 75 (2) of the Administrative Decisions Tribunal Act 1997, that the name of the applicant and the name of the applicant's children and grandchildren are not to be published without the leave of the Tribunal. For this purpose the pseudonym BYU has been used for the applicant's name. 3The applicant is a 'disqualified person' by reason of his conviction, on 4 December 1998, in the NSW District Court, of the offence of committing an act of indecency with a male under 18 years of age, contrary to s 78Q of the Crimes Act 1900 (as it applied in 1998): see cl 1(k) of Schedule 2 of the Act. The applicant pleaded guilty of the offence. On entering a conviction, the District Court deferred passing sentence on the applicant entering into a recognizance to be of good behaviour for 3 years. During this period the applicant was placed under the supervision of the NSW Probation Service and he was required to undertake any programs the supervisor required. 4The applicant was 29 years of age at the time of his disqualifying conviction and seeks an enabling order as he wishes to further pursue his university qualifications in nursing. That course requires the applicant to work within a hospital and for this purpose he requires a working with children check clearance, as this is an activity included within the meaning of the term 'child-related work': see s 6(2)(c) of the Act. 5As he was required to do, on 23 September 2013, the applicant made an application to the respondent for a working with children check. On 22 October 2013, the respondent refused to grant the applicant a clearance, under subs 18(1) of the ACT, on the basis of his 1998 conviction. 6On 20 November 2013, the applicant lodged his application for an enabling order with the then Administrative Decisions Tribunal. That application came before me, at a directions hearing, on 12 December 2013. At the directions hearing the applicant's application was set down for hearing on 20 March 2014. 7After the directions hearing, on 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with NCAT (the Tribunal) being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition and the provisions of the Administrative Decisions Tribunal Act 1997 and the Child Protection (Working with Children) Act 2012 continuing to apply. 8The applicant's application was heard on 20 March 2014 and there was no dispute that the Tribunal has jurisdiction to hear and determine the applicant's application for an enabling order: see s 28(3) of the Act. 9At the conclusion of the hearing I gave a decision and ordered that the applicant's application be refused. In giving that decision, I undertook to publish detailed reasons for decision at a later date. These are those reasons for decision.