Australia, Sept. 10 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 11:

1. In this case, the applicant asked the Tribunal to administratively review the respondent's decision dated 15 November 2024 (Refusal Decision) to refuse to grant a working with children check clearance to him on the grounds that he is a disqualified person within the meaning of s 18(1)(a) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act).

2. The applicant is a disqualified person, having been found guilty on 17 December 2010 of an offence specified in Schedule 2 of the Act, namely the offence of 'Incite person under 16 years to commit act of indecency' contrary to s 61N(1) of the Crimes Act 1900 (NSW) (the Disqualifying Offence). The applicant was not convicted but was directed to enter into a good behaviour bond for 12 months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3. Pursuant to s 28 of the Act, the applicant sought an enabling order from the Tribunal declaring that he is not to be treated as a disqualified person for the purposes of the Act in respect of the Disqualifying Offence. He also sought an order that the Children's Guardian issue a clearance to him.

4. In any proceedings where an enabling order is sought, the applicant is presumed to pose a risk to the safety of children unless proven to the contrary: s 28(7) of the Act.

5. If the Tribunal is positively satisfied that the applicant does not pose a risk to the safety of children, it is empowered to make an enabling order in respect of the Disqualifying Offence provided it is also satisfied that the applicant meets the requirements of s 30(1A) of the Act. The Tribunal must not make an enabling order unless it is satisfied that a reasonable person would allow their child to have direct unsupervised contact with the applicant while engaged in child-related work (the "reasonable person" test), and satisfied that it is in the public interest to make the order (the "public interest" test). If the Tribunal makes an enabling order, it may also exercise its discretion to make an order requiring the Children's Guardian to grant the applicant a clearance.

6. The applicant contended that he does not pose a risk to the safety of children and that he meets both the "reasonable person" and "public interest" tests.

7. The Children's Guardian opposed the application.

8. Having considered all the evidence before it, the Tribunal is satisfied that the applicant has displaced the presumption that he poses a risk to the safety of children. Further, the Tribunal is satisfied that the "reasonable person" and "public interest" tests have both been met.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1987d0253ccbd1d6523c6c2c)

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