Australia, June 20 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. On 27 August 2024, the applicant, who had been given the pseudonym GRF, applied for a working with children check clearance pursuant to the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), nominating "clubs or other bodies providing services to children" as the relevant child-related employment sector. The applicant was notified that his application was refused by notice of decision dated 6 September 2024.

2. The basis for refusal was that the applicant is a "disqualified person" under the WWC Act because he was found guilty in April 2023 of an offence identified as an "disqualifying offence" for the purposes of the WWC Act.

3. The applicant applied for an administrative review seeking review of the decision to refuse his application for a clearance on the grounds, amongst other things, that the charge carried no conviction. His application has been treated by the respondent and the Tribunal as an application for an enabling order and for an order to be granted a clearance under ss 28(1) and (6) of the WWC Act, rather than an application for administrative review. There is no dispute that the applicant is eligible to make this application, and that the Tribunal has jurisdiction to deal with this matter under the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

4. The applicant represented himself. He gave oral evidence at the hearing in support of his application and was cross examined by Ms Bromwich, who appeared on behalf of the respondent. The applicant also gave oral evidence in response to questions raised by the Tribunal. At the close of the evidence, Ms Bromwich advised that the respondent did not oppose the application.

5. Having regard to the material before the Tribunal, including the evidence of the applicant, the Tribunal decided to make an enabling order and to grant the clearance as requested by the applicant. The orders were made at the end of the hearing. These are our reasons.

Background

6. On 14 April 2023, the applicant was found guilty in relation to one count of the Victorian offence of sexual assault pursuant to s 40(1) of the Crimes Act 1958 (Vic). He was fined $4,000. The conduct which gave rise to the finding of guilt related to an incident on 5 May 2022, when the applicant was, on his own admission, highly intoxicated. After spending a day at the races, the applicant was drinking at a hotel in Victoria. He had been drinking alcohol all day. While intoxicated, he approached the victim and used an open hand to smack her on the right buttock with some force. The victim turned around and objected. She also observed that the applicant was "smirking" at her. The victim called a security officer, who then ejected the applicant from the premises.

7. The applicant appeared before the [Victorian town] Magistrates Court on 14 April 2023. He was fined $4000 by the Magistrate but no conviction was recorded. The incident occurred after midnight and in the early hours of the morning.

8. After receiving the application for a clearance, the respondent undertook the relevant criminal records searches and identified that the applicant had been charged with and found guilty of sexual assault in Victoria. Having regard to the applicant's criminal record, the respondent found that the applicant was a "disqualified person" for the purposes of the WWC Act. Relevantly, the respondent was satisfied that, if committed in NSW, this offence would constitute a disqualifying offence under the WWC Act. If a person making an application for a clearance is a disqualified person, the respondent cannot grant that person a working with children check clearance and the person must apply to this Tribunal for an enabling order.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196e6ad9a1a2063cd0756da8)

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