The decision of the respondent is set aside and in substitution thereof a decision that the respondent grant to the applicant a working with children check clearance authorising the applicant to engage in paid and unpaid child-related work.
Catchwords:
Administrative Law - review under section 27 Child Protection (Working with Children) Act 2012 - refusal of working with children check clearance - the correct and preferable decision - whether the applicant poses a risk to the safety of children - offences committed against adults more than a decade ago
BKN (Applicant) NSW Office of the Children's Guardian (Respondent)
Representation:
BKN (Applicant in person) Crown Solicitor (Respondent)
File Number(s):
1410390
Publication restriction:
Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
reasons for decision
Introduction
An order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
The Applicant in these proceedings is referred to as "BKN". On 7 July 2014, the Children's Guardian made a decision to refuse to grant BKN a Working with Children Check clearance. On 23 July 2014 the applicant BKN applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Child Protection (Working with Children) Act 2012 ('the Act').
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
AGLC
BKN v Children's Guardian [2014] NSWCATAD 213
Case
[2014] NSWCATAD 213
Decision Date
CaseChat Overview and Summary
The applicant, BKN, sought judicial review of a decision by the respondent, the Children's Guardian, under the Child Protection (Working with Children) Act 2012 to refuse the applicant a working with children check clearance. The applicant sought to engage in paid and unpaid work involving children, but the refusal was based on two offences the applicant had committed against adults more than a decade ago. The matter was heard in the Supreme Court of New South Wales.
The primary legal issue before the court was whether the refusal of the working with children check clearance was the correct and preferable decision. Specifically, the court had to determine if the applicant posed a risk to the safety of children. The court had to balance the risk to children against the applicant's right to engage in child-related work and the statutory purpose of the Act. The court also had to consider the relevance of the applicant's past offences against adults in making this determination.
The court found that the respondent's decision was not the correct and preferable decision. It held that the applicant did not pose a risk to the safety of children. The court reasoned that the offences committed by the applicant were against adults more than a decade ago and did not provide a sufficient basis to conclude that the applicant posed a risk to children. The court emphasised the importance of proportionality in administrative decisions and found that the respondent's decision was disproportionate to the risk to children. Consequently, the court set aside the respondent's decision and ordered that the respondent grant the applicant a working with children check clearance.
The court's orders were that the decision of the respondent is set aside and in substitution, a decision is made that the respondent grant to the applicant a working with children check clearance authorising the applicant to engage in paid and unpaid child-related work.
Orders
Orders of the court
The decision of the respondent is set aside and in substitution thereof a decision that the respondent grant to the applicant a working with children check clearance authorising the applicant to engage in paid and unpaid child-related work.