BKN v Children's Guardian

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.