Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BDL v Children's Guardian (No 2) [2016] NSWCATAD 133 Hearing dates: On the papers Date of orders: 05 July 2016 Decision date: 05 July 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: (1) The final decision of the Children’s Guardian dated 29 April 2014 to refuse the applicant’s application for a Working with Children Check clearance is affirmed.
Catchwords: ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal – assessment trigger by clause 2(a) of Schedule 1 Child Protection (Working with Children) Act 2012- decision pursuant to section 50 of the Civil and Administrative Tribunal Act 2015 (NSW)- no cross examination of any person- availability of findings where no cross examination and limits of fairness to the applicant- whether the applicant poses a risk to the safety of children - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse a working with children check clearance. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BDL v Children’s Guardian [2015] NSWCATAD 268
BFX v Children’s Guardian [2014] NSWCATAD 115
BGX v Children's Guardian [2014] NSWCATAD 173
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWCATAD 65
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
BZU v Children’s Guardian [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949
Keep reading for free
Create a free CaseChat account to read BDL v Children's Guardian (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2016] NSWCATAD 133
- Decision Date
CaseChat Overview and Summary
In the case of BDL v Children's Guardian (No 2), the applicant sought a review of the decision made by the Children's Guardian under section 27 of the Child Protection (Working with Children) Act 2012, which refused their application for a Working with Children Check clearance. The dispute was heard in the Civil and Administrative Tribunal of New South Wales. The applicant contested the decision, arguing that it was incorrect and preferable to grant their application for clearance. The primary concern of the court was whether the applicant posed a risk to the safety of children and whether the decision to refuse the clearance was the correct and preferable one based on the material presented.
The legal issues addressed by the court included the interpretation of clause 2(a) of Schedule 1 of the Child Protection (Working with Children) Act 2012, which triggers an assessment for a working with children check. The court also considered the onus of proof in a review under section 27 and the extent to which the principles of natural justice and fairness applied, particularly in the absence of cross-examination of any person involved in the proceedings. The court was required to determine whether the refusal of the working with children check clearance was justified and whether the applicant posed a real and appreciable risk to the safety, welfare, and well-being of children.
The court found that the decision of the Children's Guardian was correct and preferable. It was established that the applicant did pose a risk to the safety of children, and therefore, the paramount concern of protecting children from child abuse was upheld. The court noted that the onus of proof in such a review lies with the applicant to demonstrate that the decision was incorrect. Given the evidence and the absence of cross-examination, the court was satisfied that the decision to refuse the clearance was based on a proper assessment of the risk posed by the applicant. The court affirmed the final decision of the Children's Guardian dated 29 April 2014, refusing the applicant's application for a Working with Children Check clearance.
The legal issues addressed by the court included the interpretation of clause 2(a) of Schedule 1 of the Child Protection (Working with Children) Act 2012, which triggers an assessment for a working with children check. The court also considered the onus of proof in a review under section 27 and the extent to which the principles of natural justice and fairness applied, particularly in the absence of cross-examination of any person involved in the proceedings. The court was required to determine whether the refusal of the working with children check clearance was justified and whether the applicant posed a real and appreciable risk to the safety, welfare, and well-being of children.
The court found that the decision of the Children's Guardian was correct and preferable. It was established that the applicant did pose a risk to the safety of children, and therefore, the paramount concern of protecting children from child abuse was upheld. The court noted that the onus of proof in such a review lies with the applicant to demonstrate that the decision was incorrect. Given the evidence and the absence of cross-examination, the court was satisfied that the decision to refuse the clearance was based on a proper assessment of the risk posed by the applicant. The court affirmed the final decision of the Children's Guardian dated 29 April 2014, refusing the applicant's application for a Working with Children Check clearance.
Orders
Orders of the court
(1) The final decision of the Children’s Guardian dated 29 April 2014 to refuse the applicant’s application for a Working with Children Check clearance is affirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.