If the Children's Guardian refuse or cancel your Working with Children (WWC) clearance because you are a 'disqualified person' you may be able to apply to NCAT for an enabling order.
Step by step guide to applying to NCAT for an enabling order.
Make sure the offence that is causing your disqualification is one that allows you to ask for an enabling order.
Disqualifying offences are listed in Schedule 2 of the Child Protection (Working with Children) Act 2012.
You cannot apply to NCAT if you have been convicted of child murder or charged with an offence listed in Schedule 2 that has not been finalised. Refer to Section 26 of the Child Protection (Working with Children) Act 2012.
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 complete a Notice of Representation and submit to NCAT 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 NCAT does not allow the agent to appear for you. A lawyer does not need to ask for permission from the Member.
Consider what evidence you have that proves you do not pose a risk to children.
NCAT cannot make an enabling order unless you can prove that you are not a risk to children - 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 - Section 28 (5).
Complete the Administrative review application form and ask for an order that you are not to be treated as 'disqualified person' with respect to the offence.
Include the following information with your application form:
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.
Applying to NCAT 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 before NCAT makes a final decision.
You can ask for a stay of the refusal or cancellation decision until NCAT decides the case. This is called an application for a stay.
You will receive a notice of listing from NCAT with a date for a 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 your evidence with NCAT 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.
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.
A Tribunal 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 NCAT should make, the way the law should be interpreted or applied and the orders NCAT should make.
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 Tribunal Member will give their decision at the end of the hearing. However, in most cases the Tribunal 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.
08 Sep 2022
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