BKN v Children's Guardian

Case [2014] NSWCATAD 213


NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: BKN v Children's Guardian [2014] NSWCATAD 213
Hearing dates:27 October 2014
Decision date: 05 December 2014
Jurisdiction:Administrative and Equal Opportunity Division
Before: T Sheedy, Senior Member
Decision:

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
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Child Protection (Working with Children) Act 2014
Commissioner for Children and Young People Act 1998
Civil and Administrative Tribunal Act 2013
Criminal (Sentencing Procedure) Act 1999
Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v Office of the Children's Guardian (No 2) [2014] NSWSATAD 164
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
R v Commission for Children and Young People [2002] NSWIRComm 101
RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140.
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Category:Principal judgment
Parties: 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

  1. 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.

  1. 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').

Continue reading BKN v Children's Guardian

Sign in free to access the full text

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.

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.