BWE v Children's Guardian - [2016] NSWCATAD 186

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BWE v Children’s Guardian [2016] NSWCATAD 186
Hearing dates: 25 September 2015 and 19 January 2016
Date of orders: 19 August 2016
Decision date: 19 August 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: R Booby, Senior Member
M Bolt, General Member
Decision:
(1) The applicant is not be treated as a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012 in respect of the offence of committing an act of indecency with a person over the age of 16 years contrary to s. 61N of the Crimes Act 1900 of which he was convicted on 6 April 2011.
(2) Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children clearance
Catchwords: ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - whether applicant has discharged his onus to establish the contrary – meaning of risk
Legislation Cited: Crimes Act 1900 NSW
Family Law Act 1975 (Cth)
Evidence Act 1995 NSW
Commission for Children and Young People Act 1998 NSW
Child Protection (Working with Children) Act 2012 NSW
Civil and Administrative Tribunal Act 2013 NSW
Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 111
Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449
Commission for Children and Young People v V[2002] NSWSC 949
ADV v Commission for Children and Young People [2012] NSWADT 8,
RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140
RV v Commission for Children and Young People [2007] NSWADT 299
BHA v Children's Guardian [2014] NSWCATAD 161
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69,
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126.
Category: Principal judgment
Parties: BWE (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
25 September 2016
J Harris (Solicitor Advocate) (Respondent)

19 January 2016
V Hartstein (Respondent)
Solicitors:
Hal Ginges & Co (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510227
Publication restriction: 64(1) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

reasons for decision

The applicant, known as BWE in this decision, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as…

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: [2016] NSWCATAD 186
Decision Date: 19 August 2016

CaseChat Overview and Summary

The matter between BWE, the applicant, and the Children's Guardian, the respondent, was heard in the Supreme Court of Queensland. The applicant sought a review of the decision by the respondent to refuse to grant him a working with children clearance. The applicant's clearance was refused because he had been convicted of an offence of committing an act of indecency with a person over the age of 16 years. The applicant sought to overturn the decision and obtain a clearance to work with children.

The court was required to determine whether the applicant had discharged his onus of establishing that he was not a disqualified person under the Child Protection (Working with Children) Act 2012. The court was also required to determine the meaning of the word "risk" in the context of the Act and whether the applicant's conviction was such that it posed a risk to children.

The court found that the applicant had discharged his onus of proving that he was not a disqualified person. The court held that the meaning of "risk" in the context of the Act was such that the applicant's conviction did not pose a risk to children. The court held that the respondent was wrong to refuse to grant the applicant a clearance and that the applicant was not a disqualified person for the purposes of the Act. The court ordered that the applicant was not to be treated as a disqualified person in respect of the offence for which he was convicted. The court further ordered that the respondent was to grant the applicant a working with children clearance.

Orders

Orders of the court

(1) The applicant is not be treated as a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012 in respect of the offence of committing an act of indecency with a person over the age of 16 years contrary to s. 61N of the Crimes Act 1900 of which he was convicted on 6 April 2011.

(2) Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children 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:	BWE v Children’s Guardian [2016] NSWCATAD 186
Hearing dates:	25 September 2015 and 19 January 2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior Member M Bolt, General Member
Decision:	(1) The applicant is not be treated as a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012 in respect of the offence of committing an act of indecency with a person over the age of 16 years contrary to s. 61N of the Crimes Act 1900 of which he was convicted on 6 April 2011. (2) Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children clearance
Catchwords:	ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - whether applicant has discharged his onus to establish the contrary – meaning of risk
Legislation Cited:	Crimes Act 1900 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW Commission for Children and Young People Act 1998 NSW Child Protection (Working with Children) Act 2012 NSW Civil and Administrative Tribunal Act 2013 NSW
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 111 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Commission for Children and Young People v V[2002] NSWSC 949 ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 RV v Commission for Children and Young People [2007] NSWADT 299 BHA v Children's Guardian [2014] NSWCATAD 161 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126.
Category:	Principal judgment
Parties:	BWE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: 25 September 2016 J Harris (Solicitor Advocate) (Respondent) 19 January 2016 V Hartstein (Respondent) Solicitors: Hal Ginges & Co (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510227
Publication restriction:	64(1) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.