Applicant 202029 v Commissioner for Fair Trading - [2020] ACAT 92

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

APPLICANT 202029 v COMMISSIONER FOR FAIR TRADING (Administrative Review) [2020] ACAT 92

AT 29/2020
Catchwords: ADMINISTRATIVE REVIEW – working with vulnerable people – risk assessment – matters which must be taken into account when conducting a risk assessment – steps for conducting a risk assessment – criminal history and non-conviction information – use of ‘other information’ – working with vulnerable people registration denied

Legislation cited: Working with Vulnerable People (Background Checking) Act 2011 ss 27, 28, 30, 31, 32, 34, 35, 40
Child Protection (Working with Children) Act 2012

Subordinate

Legislation cited: Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2018 (No 1)

Cases cited:S v Commissioner for Fair Trading [2014] ACAT 59

Tribunal: Senior Member G Lunney SC (Presiding)

Senior Member H Robinson

Date of Orders:  12 November 2020
Date of Reasons for Decision:         12 November 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL           AT 29/2020

BETWEEN:
APPLICANT 202029
Applicant

AND:
COMMISSIONER FOR FAIR TRADING
Respondent

TRIBUNAL: Senior Member G Lunney SC (Presiding)
Senior Member H Robinson

DATE:12 November 2020

ORDER

The Tribunal orders that:

The decision under review is confirmed.
Further to the orders of 12 June 2020 and 11 August 2020, and for the avoidance of any doubt, pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008:
(a)There is to be no public access to the transcript or audio recording of the hearing.
(b)There is to be no public access to the file.
(c)There is to be no publication of the names of the applicant, his immediate family members or children concerned in these proceedings.

………………………………..
Senior Member H Robinson
For and on behalf of the Tribunal

REASONS FOR DECISION

The applicant seeks review of a decision of 18 May 2020 by the Commissioner under the Working with Vulnerable People (Background Checking) Act 2011, (the Act); and guidelines made under the Act, the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2018 (No 1), (the guidelines).
The decision related to an application by the applicant of 3 November 2017 for general registration under the Act to engage with vulnerable people as a volunteer. A proposed negative order was issued to him on 24 September 2018. This was followed by further investigations and preparation of a reconsidered recommendation report which was negative.
the applicant’s application sought interim orders which were the same as the final orders sought. They were: “Immediate granting of a WWVP, removal of my name from any secret reports and an order for costs”.
In his application, he described the decision as follows:
The decision to deny me a WWVP is wrong. The Chief Minister has ignored the criminal and illegal activity undertaken by the NSW Government and assumed the allegations are valid.
In response to the requirement that he described as the reasons for applying for review, he attached a lengthy document titled: “Have you got what you paid for?”.
The application was set down for…

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: [2020] ACAT 92
Decision Date: 12 November 2020

CaseChat Overview and Summary

In the matter of Applicant 202029 v Commissioner for Fair Trading, the applicant sought a review of the Commissioner's decision to deny them registration to work with vulnerable people. The applicant's application was refused on the basis of concerns regarding their risk to vulnerable people, primarily due to their criminal history and non-conviction information. The case was heard by the Administrative Appeals Tribunal (AAT) in Australia.

The legal issues before the AAT centred on the interpretation and application of the statutory framework governing the registration of individuals to work with vulnerable people. Specifically, the court had to determine whether the Commissioner appropriately exercised their discretion in denying registration, considering the matters they were required to take into account when conducting a risk assessment. The applicant argued that the Commissioner failed to properly consider the statutory criteria and the procedural fairness owed to them. The Commissioner, on the other hand, maintained that the decision was based on a thorough and appropriate assessment of the risks posed by the applicant.

The AAT found that the Commissioner had properly exercised their discretion in denying registration, as they had considered the relevant statutory criteria and the evidence before them. The AAT held that the Commissioner was entitled to rely on the applicant's criminal history and non-conviction information when conducting the risk assessment, and that the decision was not tainted by procedural unfairness. The AAT also found that the applicant's submissions regarding the use of "other information" did not provide sufficient grounds to overturn the Commissioner's decision.

The AAT confirmed the Commissioner's decision to deny registration to the applicant. The Tribunal further ordered that there be no public access to the transcript or audio recording of the hearing, the file, or the publication of the names of the applicant, their immediate family members, or children concerned in these proceedings, in line with previous orders and the requirements of the ACT Civil and Administrative Tribunal Act 2008.

Orders

Orders of the court

The Tribunal orders that:

The decision under review is confirmed.

Further to the orders of 12 June 2020 and 11 August 2020, and for the avoidance of any doubt, pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008:

(a) There is to be no public access to the transcript or audio recording of the hearing.

(b) There is to be no public access to the file.

(c) There is to be no publication of the names of the applicant, his immediate family members or children concerned in these proceedings.

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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