Australia, June 3 -- New South Wales Land and Environment Court issued text of the following judgement on May 5:

1. The applicant, GHM, seeks an enabling order, under section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), declaring that he is not to be treated as a 'disqualified person' for the purposes of that Act in respect of the 'disqualifying offences' of which he was convicted in July 2014.

2. The applicant seeks a declaration so that he can be issued with a volunteer working with children check clearance (WWCC clearance) by the respondent, the Children's Guardian, under the WWC Act.

3. Prior to making this application, in February 2024, the applicant had applied to the respondent for a WWCC clearance: WWC Act sections 12(1)(a) and 13.

4. In March 2024, the respondent, as she was required to do, refused the applicant's application for a WWCC clearance, because he was a 'disqualified person' having been convicted in July 2014 of two offences of 'having sexual intercourse with a person more than 14 years, less than 16 years' contrary section 66C(3) of the Crimes Act 1900 (NSW) (Crimes Act): WWC Act section 18(1) Schedule 2 clause 1(1)(h).

5. Having been refused a WWCC clearance, this gave the applicant a right to make this application within the default application period prescribed in rule 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). In this case, the applicant lodged his application a few days outside the prescribed period. However, on 9 May 2024, the Tribunal extended the time within which the applicant was to lodge his application. On this day, the Tribunal also made a non-disclosure order, which remains in force, under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), prohibiting the disclosure, by way of publication, of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings, with the exception of the name of an expert witness or officer of a government agency.

The WWC Act

6. The object of the WWC Act is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have a WWWC clearance: WWC Act section 3.

7. Section 4 of the WWC Act provides that the paramount consideration in the operation of the WWC Act is the 'safety, welfare and well-being of children and, in particular, protecting them from child abuse'.

8. The word 'children' is defined in section 5(1) of the Act to mean 'persons under the age of 18 years'.

9. Section 18 in Division 4 of Part 3 of the WWC Act sets out how the respondent is to determine an application for a WWCC clearance. In this regard:

1) section 18(1)(a) provides that the respondent must not grant a WWCC clearance to a person (disqualified person) convicted before, on or after the commencement on that section of an offence specified in Schedule 2, if the offence was committed as an adult (a 'disqualifying offence'). As we have already noted, the applicant was convicted, in July 2014, of an offence under clause 1(1)(h) of Schedule 2 of that Act and it was on this basis that the respondent refused his application for a WWCC clearance;

2) section 18(2) provides that the respondent must grant a clearance to a person who is subject to a risk assessment under Division 3 of Part 3 of that Act unless the respondent is satisfied that the person poses a risk to the safety of children. Section 14 in Division 3 of Part 3 provides that a person is subject to a risk assessment if any of the matters specified in Schedule 1 apply to the person and section 15 in this Division provides that the respondent must conduct a risk assessment to determine whether the person poses a risk to the safety of children;

3) section 18(3) provides that the respondent must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

10. As noted above, the applicant seeks an enabling order under section 28(1) of the WWC Act.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968e48cf8bc171247a87b0c)

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