AX v Commissioner for Children and Young People and Child Guardian (No 2)

AX appeals against a decision of the Tribunal which dismissed AX’s appeal against a decision of the Commissioner for Children and Young People and Child Guardian to issue AX with a negative notice. A negative notice under the Working with Children Act 2009 (WA) prohibits the holder from working in a declared child-related occupation. The Commissioner’s decision was based on a determination that there was a risk of reoffending, following a conviction of the holder for a serious sexual offence against a child. The Tribunal upheld the Commissioner’s decision, finding that the risk of reoffending was not insignificant and that the risk was not outweighed by any relevant considerations. The Tribunal rejected the evidence of a treating psychologist who assessed the risk of reoffending as being minimal.

The legal issues in the appeal related to whether the Tribunal made an error of law, failed to properly inform itself, failed to take into account or gave too little weight to relevant considerations, and whether the Tribunal was entitled to rely on the evidence of the treating psychologist. The appeal hinged on the weight to be given to the psychologist’s evidence and whether the Tribunal was correct to reject it. The appeal also considered whether the Tribunal had failed to consider relevant evidence and whether it had given too little weight to the risk of reoffending.

The court found that the Tribunal had erred in law by rejecting the evidence of the treating psychologist without proper reason. The psychologist’s evidence was relevant and should have been given proper consideration. The court found that the Tribunal had failed to properly inform itself of the relevant considerations and had given insufficient weight to the risk of reoffending. The court held that the Tribunal’s decision was flawed and remitted the matter to the Tribunal to reconsider the evidence and make a fresh determination. The court set aside the Tribunal’s decision and substituted its own decision, ordering that a positive notice be issued to AX.

The court ordered that leave to appeal be granted, the appeal be allowed, and the decision of the Tribunal be set aside. The court ordered that the Commissioner issue a positive notice to AX and that the parties provide written submissions on the application for costs. The court ordered that the application for costs be determined on the papers.