Steps in a working with children enabling order matter

Administrative and Equal Opportunity Division

Step 1: Apply to the Children's Guardian for a Working with Children Check

Step 2: Make sure the reason for refusing or cancelling the clearance is that you are disqualified

Step 3: Make sure the offence that is causing your disqualification is one that allows you to ask for an enabling order

Step 4: Consider whether you want a lawyer or agent to represent you

Step 5: Consider what evidence you have to show that you do not pose a risk to children

Step 6: Apply to NCAT for an order that you are not to be treated as disqualified with respect to the offence and pay the fee

Step 7: Consider whether to apply for an urgent stay of the decision

Step 8: Receive a letter from NCAT

Step 9: Take part in the directions hearing

Step 10: Prepare for the hearing

Step 11: Take part in the hearing

Step 12: Receive NCAT's decision

Step 13: If you are not satisfied with NCAT's decision, consider whether you have grounds for appeal

Step 1 Apply to the Children's Guardian for a Working with Children Check

Before applying to NCAT for an enabling order you must have asked the Children's Guardian for a Working with Children Clearance. 

If you had a clearance and then become a disqualified person your clearance will be cancelled and the Children's Guardian will notify you.

If the reason for the Children's Guardian refusing or cancelling the clearance is that you are a disqualified person you may be able to come to the Tribunal to ask for an enabling order with respect to that offence to allow the clearance to be granted.      

For more information about the Checks, visit the Children's Guardian website.

Step 2 Make sure the reason for refusing or cancelling the clearance is that you are disqualified

The disqualifying offences are listed in Schedule 2 of the Child Protection (Working with Children) Act 2012.

Not all disqualified persons are eligible to apply for an enabling order. If a person has been convicted of child murder or has been charged with an offence listed in Schedule 2 that has not been finalised they cannot apply to the Tribunal, refer to Section 26 of the Act and Regulation.

Step 3 Make sure the offence that is causing your disqualification is one that allows you to ask for an enabling order

Not all disqualified persons are eligible to apply for an enabling order. If a person has been convicted of child murder or has been charged with an offence listed in Schedule 2 that has not been finalised they cannot apply to the Tribunal, refer to Section 26 of the Act and Regulation.  

Step 4 Consider whether you want a lawyer or agent to represent you 

You can either present your own case to NCAT or have a lawyer or non-lawyer agent represent you. You will usually need to attend the hearing to give your instructions to your lawyer or agent.

Your lawyer or agent needs to fill out a Notice of Representation and submit it to the registry in person or by post. If a non-lawyer agent is representing you, you also need to sign the Notice before it is submitted. In both cases, you have to send a copy of the Notice to the Children's Guardian.

Your agent needs to ask for permission to represent you from the Tribunal member the next time the case is listed. You should attend with the agent in case the Tribunal does not allow the agent to appear for you. A lawyer does not need to ask for permission from the member.

Step 5 Consider what evidence you have to show that you do not pose a risk to children

The Tribunal cannot make an enabling order unless you can prove that you are not a risk to children, refer to Section 28 (7). You would usually do this by being assessed by a psychologist or psychiatrist. Their report would be used in evidence in your case. You may ask them to come to the hearing to give evidence on your behalf. You pay the cost of the preparation of the report and the witnesses expenses if they are required to attend the hearing. You will not be asked to pay for the costs of the Children's Guardian.

If you apply to NCAT, the Children's Guardian becomes a party to the application.  They can obtain information or documents about you from officers of government agencies and previous employers. They may also ask you to agree to be assessed by a psychologist or a psychiatrist.

You must disclose to NCAT anything relevant to the application, refer to Section 28 (5).

Step 6 Apply to NCAT for an order that you are not to be treated as disqualified with respect to the offence and pay the fee

If you choose to apply to NCAT, you have to fill out the application form and post or bring two copies to NCAT registry with the fee. You cannot lodge online or fax it.

You will need to include the following information on your form:

  • your name, address and telephone number

  • a copy of the decision made by the Children's Guardian

  • details of the offence that lead to your disqualification

The list of factors that NCAT will consider when determining the application are in Section 30 of the Act.

Some of them are the seriousness of the offence, how long ago it was, the age of the victim and their vulnerability, the difference in age between you and the victim, whether you knew they were a child, your age now, your criminal record, and the likelihood of it happening again. 

There is a fee to make this application to NCAT. Check the Fees and charges page to see which fee applies to you, and how to pay the fee.

Step 7 Consider whether to apply for an urgent stay of the decision

The lodging of your application does not mean that you can participate in child related employment. You are committing an offence if you apply for, undertake or remain in child related employment prior to the determination of your application.

You can ask for a stay of the refusal or cancellation decision until the application is determined. This is called an application for a stay order. Contact the registry for more information.

You must give reasons for asking for the decision to be suspended. NCAT will also seek the views of the Children's Guardian. If the stay is granted you will be able to apply for, carry out or remain in child related employment until NCAT makes a final decision.

Step 8 Receive a letter from NCAT

You will receive a letter from NCAT informing you that your application has been received, and explaining the next steps. The letter will also contain the date for a directions hearing. 

Step 9 Take part in the directions hearing 

The purpose of a directions hearing is to agree on what the parties need to do to prepare the case for hearing. Normally you will be given a timetable to file evidence in the Tribunal and give it to the Children's Guardian.

During the directions hearing, the Children's Guardian may ask you questions about your involvement with children and your background. This information will help the Children's Guardian to prepare for the hearing.

More than one directions hearing may be necessary before the matter is ready for hearing.

Step 10 Prepare for the hearing

An order can only be made if NCAT is satisfied that you do not pose a risk to the safety of children. It is up to you to prove that you do not pose a risk.

To prepare for the hearing you need to comply with the directions that the Tribunal member has made at the directions hearing. That will include filing and serving all the material you want the Tribunal to take into account when deciding your case. That material may include a statement or affidavit from you and other witnesses.

Because you have the responsibility of proving that you do not pose a risk to the safety of children, you may wish to provide a report from a psychiatrist or psychologist expressing an opinion about that issue. You will receive statements and reports from the Children's Guardian.

Step 11 Take part in the hearing         

A judicial member will hear your case. You and your witnesses, if any, will give evidence first. A representative from the Children's Guardian will cross-examine you and your witnesses. The Children's Guardian’s representative will then present evidence from their witnesses and you will be able to cross-examine those witnesses.

Finally, you and the Children's Guardian's representative will be invited to make submissions. Those submissions may be about the findings of fact the Tribunal should make, the way the law should be interpreted or applied and the orders that the Tribunal should make.

Step 12 Receive NCAT's decision

NCAT can make an enabling order declaring that the disqualifying offence is to be disregarded and allow you to be considered for a clearance to work with children.

The order cannot have conditions attached to it.

If NCAT refuses to grant you an order, you cannot make another application for a clearance for 5 years. There are some exceptions to this, they are listed in Section 21 of the Act.     

In some instances, the judicial member will give their decision at the end of the hearing. However, in most cases the judicial member will require time to consider the case and will give the decision at a later date.

A decision about your case will generally be published on the NSW Caselaw website. The names of parties and witnesses will generally not be revealed.

Step 13 If you are not satisfied with NCAT's decision, consider whether you have grounds for appeal

You cannot appeal to the Appeal Panel from a decision of NCAT. You may have the right to appeal to the NSW Supreme Court on a question of law. If you are not sure of your appeal rights you should seek legal advice​.