Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: BMU v Children’s Guardian [2015] NSWCATAD 129 Hearing dates: 12, 13 March 2015 and 20 April 2015 Decision date: 24 June 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: 1) The decision of the Children’s Guardian dated 28 August 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
2) The application for review of the decision of the Children's Guardian filed 24 September 2014 is otherwise refused and dismissed.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 - whether the applicant poses a risk to the safety of children - allegation and investigation of indecent assault incident - sustained finding by employer of inappropriate conduct - no criminal convictions- acquittal by jury on 2 charges of grooming by carriage service under section 474.27 of the Criminal Code, Criminal Code Act 1995 (Cth) and 2 of aggravated indecent assault under 61M(2) of the Crimes Act 1900 (NSW) taken to trial- onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety of children- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse to grant a working with children clearance. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (repealed)
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)
Children and Young Persons (Care and Protection) Regulation 2012
Civil and Administrative Rules 2014
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)Cases Cited: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
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 (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
BPX v Children’s Guardian [2015] NSWCATAD 114
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
Carr v Simnovic (1980) 26 SASR 263
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7…
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Details
- Case
- [2015] NSWCATAD 129
- Decision Date
CaseChat Overview and Summary
In the case of BMU v Children's Guardian, the applicant sought judicial review of a decision by the Children's Guardian under the Child Protection (Working with Children) Act 2012, which refused to grant him a Working with Children Check clearance. The applicant had been accused of inappropriate conduct by his employer, and while acquitted of related criminal charges, he faced the administrative decision regarding his clearance. The dispute was brought before the Supreme Court of New South Wales.
The legal issues central to this case involved the interpretation of the statutory framework for the Working with Children Check and the standard of proof required in such administrative decisions. Specifically, the court had to determine whether the Guardian's decision to refuse the clearance was the correct and preferable one, given the material before the Tribunal. It was also necessary to assess whether the applicant posed a real and appreciable risk to the safety of children, a determination that rests on a balance of probabilities.
The court held that the onus of proof in a review under section 27 of the Act lies with the applicant to demonstrate that the Guardian's decision was not the correct and preferable one. In examining the evidence, the court found that the sustained finding of inappropriate conduct by the applicant's employer, coupled with the nature of the allegations and the acquittal in criminal court, constituted sufficient grounds to uphold the Guardian's decision. The court concluded that there was a real and appreciable risk posed by the applicant to the safety of children, thus affirming the correctness of the Guardian's decision.
Consequently, the court dismissed the applicant's application for judicial review and affirmed the Children's Guardian's decision to refuse the Working with Children Check clearance. This decision underscores the importance of the administrative body's findings in such sensitive matters and the high threshold for overturning such decisions in judicial review proceedings.
The legal issues central to this case involved the interpretation of the statutory framework for the Working with Children Check and the standard of proof required in such administrative decisions. Specifically, the court had to determine whether the Guardian's decision to refuse the clearance was the correct and preferable one, given the material before the Tribunal. It was also necessary to assess whether the applicant posed a real and appreciable risk to the safety of children, a determination that rests on a balance of probabilities.
The court held that the onus of proof in a review under section 27 of the Act lies with the applicant to demonstrate that the Guardian's decision was not the correct and preferable one. In examining the evidence, the court found that the sustained finding of inappropriate conduct by the applicant's employer, coupled with the nature of the allegations and the acquittal in criminal court, constituted sufficient grounds to uphold the Guardian's decision. The court concluded that there was a real and appreciable risk posed by the applicant to the safety of children, thus affirming the correctness of the Guardian's decision.
Consequently, the court dismissed the applicant's application for judicial review and affirmed the Children's Guardian's decision to refuse the Working with Children Check clearance. This decision underscores the importance of the administrative body's findings in such sensitive matters and the high threshold for overturning such decisions in judicial review proceedings.
Orders
Orders of the court
1) The decision of the Children’s Guardian dated 28 August 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
2) The application for review of the decision of the Children's Guardian filed 24 September 2014 is otherwise refused and dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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