BQP v Children's Guardian - [2015] NSWCATAD 160

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BQP v Children’s Guardian [2015] NSWCATAD 160
Hearing dates: 18 & 19 March 2015
Decision date: 04 August 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
Decision:
The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant BQP a working with children check clearance.

Catchwords: Administrative Law - review under s27
Child Protection (Working with Children) Act 2012 - refusal of working with children check clearance - correct and preferable decision – finding that sexual assault did not occur – whether sexual misconduct – whether grooming behaviour - whether a risk to the safety of children.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Evidence Act 1995 (NSW)
Interpretation Act 1987
Cases Cited: AHV v NSW Commission for Children and Young People [2012] NSWADT 263
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9
BJB v The Children’s Guardian (No 2) [2014] NSWCATAD 163
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]- [40]
Category: Principal judgment
Parties: BQP (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
D Burwood (Applicant)
V Hartstein (Respondent)
Solicitors:
Browns Legal & Consulting (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510001
Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify BQP, 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

The applicant, who will be referred to as BQP, is a medical practitioner by profession. On 26 July 2013, he applied for a working with children check clearance. Following his request, the Office of the Children’s Guardian (‘the Children’s Guardian’) conducted a risk assessment for BQP. The trigger for the investigation was the finding by the Department of Family and Community Services (FACS) of sexual misconduct by BQP.
Following the completion of the risk assessment, BQP was issued with a ‘Notice of proposed refusal of application’ under s19 of the Child Protection (Working with Children) Act 2014 (‘the Act’) inviting him to make submissions to the Children’s Guardian. Having considered BQP’s subsequent submissions, the Children’s Guardian made a decision on 16 December 2014 to refuse to grant him a working with children check clearance. BQP’s application for review was lodged, within time, on 6 January 2015. He has therefore applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Act.
There is no dispute that…

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 160
Decision Date: 04 August 2015

CaseChat Overview and Summary

The parties involved in this case were BQP, the appellant, and the Children's Guardian, the respondent. The dispute centred around the refusal of BQP's application for a working with children check clearance under the Child Protection (Working with Children) Act 2012. This matter was brought before the court seeking a review of the respondent's decision. The legal issues that needed to be addressed by the court included whether the refusal to grant the clearance was the correct and preferable decision, and whether the decision was justified based on findings of sexual assault, sexual misconduct, or grooming behaviour that posed a risk to the safety of children. The court had to determine if the decision was legally sound and based on appropriate considerations.

In reaching its decision, the court carefully examined the evidence and reasoning behind the respondent's decision. The court found that the refusal of the working with children check clearance was not the correct and preferable decision. It was determined that the findings of sexual assault and grooming behaviour, which were the basis for the refusal, were not supported by the evidence. Furthermore, the court held that there was no evidence to suggest that BQP posed a risk to the safety of children due to sexual misconduct. Consequently, the court concluded that the decision was not legally sound and that the respondent had not followed the correct process in denying the clearance.

The court set aside the decision of the respondent and ordered that the working with children check clearance be granted to BQP. The court's decision was based on the finding that the evidence did not support the allegations of sexual assault, sexual misconduct, or grooming behaviour, and that the refusal of the clearance was not justified. The court's orders were made pursuant to section 18(2) of the Child Protection (Working with Children) Act 2012, ensuring that the respondent complied with the court's decision and granted the clearance to BQP.

Orders

Orders of the court

The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant BQP a 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:	BQP v Children’s Guardian [2015] NSWCATAD 160
Hearing dates:	18 & 19 March 2015
Decision date:	04 August 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant BQP a working with children check clearance.
Catchwords:	Administrative Law - review under s27 Child Protection (Working with Children) Act 2012 - refusal of working with children check clearance - correct and preferable decision – finding that sexual assault did not occur – whether sexual misconduct – whether grooming behaviour - whether a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 (NSW) Interpretation Act 1987
Cases Cited:	AHV v NSW Commission for Children and Young People [2012] NSWADT 263 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9 BJB v The Children’s Guardian (No 2) [2014] NSWCATAD 163 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]- [40]
Category:	Principal judgment
Parties:	BQP (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: D Burwood (Applicant) V Hartstein (Respondent) Solicitors: Browns Legal & Consulting (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510001
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify BQP, 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.