BCS v The Children's Guardian

INTRODUCTION 1On 5 March 2008 the Applicant was convicted by a jury in the District Court of NSW of an offence under s.61I of the Crimes Act, 1900 (NSW) of sexual intercourse without consent with his wife. 2He was sentenced to imprisonment and has served his sentence. 3The Applicant is a dentist. He wishes to be able to provide dental treatment to persons under 18 years of age. Under the Child Protection (Working with Children) Act, 2012 (the "Act"), the conviction in 2008 renders him a "disqualified person" to whom the Children's Guardian is prohibited from providing a Working with Children clearance. 4The Applicant has therefore applied to the Tribunal under s.28(1) of the Act for an enabling order declaring that he is not to be treated as a "disqualified person" in respect of that offence.

RELEVANT LEGISLATIVE PROVISIONS 5Section 4 of the Act provides that: "The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 6Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 7Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 8Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 9Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 10Section 12 provides that there are two classes of Working with Children Check Clearances which are: (a)Volunteer - authorising workers to engage in unpaid child-related work; and (b)Non-volunteer - authorising workers to engage in paid and unpaid child-related work . 11Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 12Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The Respondent was an adult at the time the offence was committed. 13In paragraph (1)(e) of Schedule 2 to the Act, an offence under s.61L of the Crimes Act, 1900, is included in the specified offences that are disqualifying offences. 14Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to BCS because of the offence against his wife. The Children's Guardian therefore refused to issue a Working with Children Check Clearance for BCS. APPLICATIONS FOR AN ENABLING ORDER 15Section 28 of the Act provides: (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 16Section 30 of the Act provides as follows: (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Commission considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. (3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.