Applicant 032018 v Commissioner for Fair Trading - [2018] ACAT 77

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

APPLICANT 032018 v COMMISSIONER FOR FAIR TRADING
(Occupational Discipline) [2018] ACAT 77
OR 3/2018
Catchwords: OCCUPATIONAL DISCIPLINE – Working with Vulnerable People (Background Checking) Act 2011 – unacceptable risk of harm to a vulnerable person – negative notice refusing registration – examination and application of risk assessment guidelines – evaluation of risks arising from offences – consideration of possible conditions on registration –affirmation of refusal to register

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 35
Working with Vulnerable People (Background Checking) Act 2011 ss 26, 27, 28, 29, 34, 40, Part 7 & Schedule 2

Subordinate
Legislation:Working with Vulnerable People (Background Checking) Regulation 2012
Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012

Cases cited:S v Commissioner for Fair Trading [2014] ACAT 59
Department of Human Services v DR [2013] VSC 579
Williams v Secretary to the Department of Justice and Regulation [2017] VCAT 44

Tribunal:                  Senior Member M Brennan
  Senior Member Professor D Byrne
Date of Orders:  30 July 2018
Date of Reasons for Decision:         30 July 2018
AUSTRALIAN CAPITAL TERRITORY        )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 3/2018

BETWEEN:
APPLICANT 032018
Applicant

AND:
COMMISSIONER FOR FAIR TRADING
Respondent

TRIBUNAL:Senior Member M Brennan
Senior Member Professor D Byrne

DATE:30 July 2018

ORDER

Having regard to the quantity and details of personal information in this matter the Tribunal is satisfied that the right to a public hearing is outweighed by the interest of the private lives of the parties which require privacy.
Accordingly, pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008, the Tribunal orders that:
1.The hearing is to be held in private and there is to be no access by the public to the file for these proceedings, or by the public to transcript or audio recordings of the hearings, save by order of the Tribunal.
2.The applicant shall be referred to as Applicant 032018.

The Tribunal orders that:
3.The decision of the respondent to issue a negative notice under section 40 of the Working With Vulnerable People (Background Checking) Act 2011 is confirmed.
………………………………..
Senior Member M Brennan
For and on behalf of the Tribunal

REASONS FOR DECISION

1.In this case the Tribunal is reviewing a decision refusing the applicant’s registration to work with vulnerable people. The applicant has been tutoring and lecturing at tertiary level for several years. He needs this registration to continue this casual employment.
2.On 6 March 2018 the applicant filed an application for review of the respondent’s decision of 16 February 2018 to issue a negative notice pursuant to section 40 of the Working with Vulnerable People (Background Checking) Act 2011 (the WWVP Act). The respondent decided that the applicant was not suitable to be registered under the WWVP Act on the grounds that he presented an unacceptable risk of harm to vulnerable people.
3.The respondent advised the applicant its reasons for this were:
(a)his national police history check revealed multiple convictions for sexual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACAT 77
Decision Date: 30 July 2018

CaseChat Overview and Summary

The matter involved a dispute between an applicant, identified as Applicant 032018, and the Commissioner for Fair Trading, concerning the issuance of a negative notice under the Working With Vulnerable People (Background Checking) Act 2011. The ACT Civil and Administrative Tribunal was tasked with reviewing the Commissioner's decision to issue the negative notice, which effectively barred the applicant from working with vulnerable people.

The legal issues before the Tribunal centred around the validity and appropriateness of the Commissioner's decision to issue the negative notice, given the statutory framework and the applicant's rights to privacy and procedural fairness. The applicant argued that the notice was issued without proper consideration of mitigating factors and without adequate procedural fairness. The Tribunal had to determine whether the Commissioner had correctly applied the law and whether the issuance of the notice was justified under the relevant legislation.

In reaching its decision, the Tribunal carefully examined the statutory provisions and the Commissioner's application of them. It found that the Commissioner had acted within his authority and had followed the proper procedures in issuing the notice. The Tribunal concluded that the negative notice was appropriate and legally justified, confirming the Commissioner's decision. Additionally, the Tribunal recognised the sensitive nature of the information involved and ordered that the proceedings be held in private to protect the privacy of the parties.

Orders

Orders of the court

Having regard to the quantity and details of personal information in this matter the Tribunal is satisfied that the right to a public hearing is outweighed by the interest of the private lives of the parties which require privacy.

Accordingly, pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008, the Tribunal orders that:

1. The hearing is to be held in private and there is to be no access by the public to the file for these proceedings, or by the public to transcript or audio recordings of the hearings, save by order of the Tribunal.

2. The applicant shall be referred to as Applicant 032018.

The Tribunal orders that:

3. The decision of the respondent to issue a negative notice under section 40 of the Working With Vulnerable People (Background Checking) Act 2011 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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