BRU v Children’s Guardian [2015] NSWCATAD 119

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BRU v Children's Guardian [2015] NSWCATAD 119 Hearing dates: 15 May 2015 Decision date: 15 May 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: 1) Pursuant to section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW), the Tribunal declares that the applicant BRU is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW), in respect of an offence of carnal knowledge (pursuant to the now repealed section 71 Crimes Act 1900 (NSW)) for which the applicant was convicted on 29 September 1972.

2) The Tribunal orders the Children's Guardian to grant the applicant BRU a clearance pursuant to section 28 (6) of the Child Protection (Working with Children) Act 2012. Catchwords: ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- carnal knowledge disqualifying offence under (repealed) section 71 Crimes Act 1900 (NSW) conviction on 29 September 1972 – no evidence of force or violence – little difference in age – plea of guilty - weight to be given to only offence in the life of the applicant – section 128 certificate Evidence Act 1995 (NSW) granted in relation to evidence of events which occurred after refusal of clearance – risk assessment of expert stresses multiple protective factors – assessment of low or minimal risk posed by applicant- likelihood of repetition of disqualifying offence effectively nil - whether the applicant has proven he is not a risk to the safety of children-Tribunal not bound by the rules of evidence - onus of proof- onus of proof discharged by applicant- effect of BKE v Office of the Children's Guardian [2015] NSWSC 523 - enabling order granted. Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Rules 2014 Civil and Administrative Tribunal Act 2013(NSW) Crimes Act 1900(NSW) Evidence Act 1995(NSW) Family Law Act 1975 (Cth) Interpretation Act 1987(NSW) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children's Guardian [2015] NSWSC 523 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 M v M [1988] HCA 68; 166 CLR 59 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 R v Commission for Children and Young People [2002] NSWIRComm 101 Roberts v Balancio (1987) 8 NSWLR 436 Category: Principal judgment Parties: BRU (Applicant) Children's Guardian (Respondent) Representation: Counsel: R Lee (Respondent)