BPA v Children's Guardian

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BPA v Children’s Guardian [2015] NSWCATAD 36
Hearing dates:	5 February 2015
Decision date:	10 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	Decision of the respondent is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – review of decision to refuse a working with children check clearance – the applicant’s convictions for violence and aggression triggered a risk assessment – on completion of the risk assessment the respondent was satisfied that the applicant posed a risk to the safety of children – whether the respondent’s decision is the correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 (repealed) Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 YG and GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	BPA (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: T L Scott (Agent for Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410624
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person from which the name of the applicant could be identified is not to be published or broadcasted without the leave of the Tribunal.

Reasons for decision

1. The applicant, BPA, seeks review of the decision of the respondent, the Children’s Guardian, to refuse his application for a working with children check clearance, under the Chid Protection (Working with Children) Act 2012 (the 2012 Act).

2. The applicant is 48 years of age and he and his partner of 20 years are the authorised carers of two children. The children are the children of a cousin of the applicant’s partner and are aged 10 and 11 years. The children have been in the care of the applicant and his partner since they were very small.

3. The applicant and his partner are authorised as carers under section 137 of the Children and Young Person (Care and Protection) Act 1998 (the Care Act). They are authorised as the Aboriginal kinship carers of the two children in their care. Supervision of the placement of the children is the responsibility of the Department of Human Services, Community Services (the Department).

4. The 2012 Act came into force on 15 June 2013 and required every person engaged in ‘child-related work’ to have a working with children check clearance: see sections 3(b) of that Act. To work in ‘child-related work’ without a clearance is an offence (see sections 8 and 9 of the 2012 Act).

5. ‘Child-related work’ is broadly defined in section 6 of the 2012 Act. It is more broadly defined to that contained in earlier legislative schemes (i.e.…