BXL v Children's Guardian - [2016] NSWCATAD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BXL v Children’s Guardian [2016] NSWCATAD 36
Hearing dates: 11 November 2015
Date of orders: 23 February 2016
Decision date: 23 February 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: R Booby, Senior Member
R Royer, General Member
N Heffernan, General Member
Decision:
The application is refused

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
Civil and Administrative Tribunal Act 2013 NSW
Category: Principal judgment
Parties: BXL (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
P Lowson (Respondent)
Solicitor:
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 1510325
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 BXL in this decision, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 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 defined under s 6 of the Act.
Section 18(1)(a) of the Act establishes that where a person is convicted of an offence specified in Schedule 2 of the Act, that person is a disqualified person, to whom the Children’s Guardian must not grant a working with children clearance.
The offences which bring the applicant within subsection 18(1) of the Act (the index offences) are convictions on 7 April 2004 on five counts of aggravated indecent assault of a victim under the age of 16 years in contravention of section 61M of the Crimes Act 1900 NSW. The notice by the Office of the Children's…

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 36
Decision Date: 23 February 2016

CaseChat Overview and Summary

In the matter of BXL and the Children's Guardian, the court addressed the issue of a working with children clearance check, focusing on whether the applicant had adequately demonstrated that he was not disqualified due to risk. The court was tasked with examining the statutory criteria under the Working with Children Act 2009 (Vic) and determining the appropriate interpretation of the term "risk" in this context. The primary concern was whether BXL, who had a history of criminal activities, posed a risk to children, thereby disqualifying him from obtaining the clearance check. The court's decision hinged on the interpretation of the term "risk" and whether the applicant had sufficiently established that he did not represent a risk to children.

The legal issues before the court encompassed the interpretation of the statutory definition of "risk" within the Working with Children Act 2009 (Vic). Specifically, the court had to ascertain whether "risk" in this context referred to the potential for harm or to the probability of harm occurring. This interpretation was crucial as it would determine whether BXL's past criminal activities constituted a disqualifying factor under the legislation. Additionally, the court had to consider whether the applicant had discharged the onus of proving that he did not represent a risk to children, despite his criminal history. The court needed to weigh the seriousness and nature of the applicant's past offences against the statutory criteria for disqualification.

The court found that the term "risk" in the Working with Children Act 2009 (Vic) was not limited to the mere possibility of harm but also encompassed the likelihood of harm occurring. Given the nature and seriousness of BXL's criminal history, the court concluded that he did not meet the threshold required to demonstrate that he did not represent a risk to children. Consequently, the court held that BXL had not discharged the onus of proving he was not disqualified from obtaining a working with children clearance check. The application was therefore refused.

Orders

Orders of the court

The application is refused

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:	BXL v Children’s Guardian [2016] NSWCATAD 36
Hearing dates:	11 November 2015
Date of orders:	23 February 2016
Decision date:	23 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior Member R Royer, General Member N Heffernan, General Member
Decision:	The application is refused
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 Civil and Administrative Tribunal Act 2013 NSW
Category:	Principal judgment
Parties:	BXL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson (Respondent) Solicitor: NSW Crown Solicitor’s Office (Respondent)
File Number(s):	1510325
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.