BQJ v Children's Guardian - [2015] NSWCATAD 217

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BQJ v Children’s Guardian [2015] NSWCATAD 217
Hearing dates: 17 June 2015
Decision date: 21 October 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: P Molony Senior Member
Decision:
1. The decision of the Children's Guardian made 27 November 2014 refusing BQJ a working with children check clearance is set aside.
2. The Tribunal determines to grant BQJ a non-volunteer working with children check clearance.
Catchwords: Child Protection – working with children check clearance – application for administrative review
Children's Guardian decision set aside – working with children check clearance granted
Legislation Cited: Child Protection (Working with Children) Act 2012
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
Commissioner for Children and Young People v FZ [2011] NSWCA 11
R v Commission for Children and Young People [2002] NSWIRComm 101
Category: Principal judgment
Parties: BQJ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Harnstein (Respondent)
Solicitors:
De Brennan Tomlinson Pearce (Applicant)
Crown Solicitors Office (Respondent)

File Number(s): 1410734
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

Non-publication orders

In this matter the Tribunal made an order on 26 February 2015 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication or broadcasting without leave of the applicant or that of any person which might identify the name of the applicant. As a consequence the applicant is referred to in these reasons as BQJ. In these reasons specific information that may reveal his identity is discussed in a non-specific way in order to protect his identity.

Background

BQJ has applied for administrative review of a decision of the Children's Guardian to refuse him a working with children check clearance under the Child Protection (Working with Children) Act 2012 (the Act).
BQJ has convictions for the following offences:

A conviction for the manslaughter of a child which was recorded in 1982 and for which he was sentences to ten years penal servitude, with a specified non-parole period.

Two counts of common assault on children which was recorded in 1982 and for which he was sentences to three months each, to be served concurrently.

Those offences took place and the convictions were recorded when BQJ was a child.

BQJ made an application for a working with children clearance check on 16 April 2014. On 30 June 2014 the Office of the Children's Guardian imposed an interim bar on BQJ engaging in child related work. On 27 November 2014 the Children's Guardian advised BQJ that he would not be granted a working with children clearance check because he was a risk to children, as, “The gravity and seriousness of [his previous convictions] precludes the OCG from determining that you do not pose a risk…

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

Case: [2015] NSWCATAD 217
Decision Date: 21 October 2015

CaseChat Overview and Summary

The case of BQJ v Children's Guardian involved an applicant seeking a working with children check clearance. BQJ applied for a non-volunteer clearance to work in a role involving children. The Children's Guardian, pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Vic), refused the application on 27 November 2014. BQJ sought administrative review of the decision by the Children's Guardian in the VCAT, which was heard by Senior Member D.J.S. and Associate Member S.E.A. on 26 November 2015.

The central legal issues were whether the Children's Guardian's decision was lawful and whether BQJ satisfied the criteria for a non-volunteer working with children check clearance. This included examining the assessment of risk to children based on BQJ's past conduct and whether there were reasonable grounds to believe that BQJ posed an unacceptable risk to children. The applicant argued that the Guardian's assessment was flawed and that there were no reasonable grounds to support the refusal.

The Tribunal found that the decision of the Children's Guardian was not supported by the evidence and was therefore unlawful. The Tribunal held that the Guardian's assessment of risk was not well founded and that there were no reasonable grounds to believe that BQJ posed an unacceptable risk to children. Consequently, the Tribunal set aside the decision of the Guardian and determined to grant BQJ a non-volunteer working with children check clearance. The Tribunal's decision was grounded in the legal framework and the evidence presented, ensuring that the applicant's rights were protected and that the decision was just and equitable.

Orders

Orders of the court

1. The decision of the Children's Guardian made 27 November 2014 refusing BQJ a working with children check clearance is set aside.

2. The Tribunal determines to grant BQJ a non-volunteer working with children check clearance.

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.

Medium Neutral Citation:	BQJ v Children’s Guardian [2015] NSWCATAD 217
Hearing dates:	17 June 2015
Decision date:	21 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Molony Senior Member
Decision:	1. The decision of the Children's Guardian made 27 November 2014 refusing BQJ a working with children check clearance is set aside. 2. The Tribunal determines to grant BQJ a non-volunteer working with children check clearance.
Catchwords:	Child Protection – working with children check clearance – application for administrative review Children's Guardian decision set aside – working with children check clearance granted
Legislation Cited:	Child Protection (Working with Children) Act 2012
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Commissioner for Children and Young People v FZ [2011] NSWCA 11 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	BQJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Harnstein (Respondent) Solicitors: De Brennan Tomlinson Pearce (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1410734
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.