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CBN v Children's Guardian

CBN v Children's Guardian

Case [2016] NSWCATAD 240 26 October 2016

Judicial Review

Natural Justice & Procedural Fairness

Evidence Law

Admissibility of Evidence

Administrative Law

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CBN v Children’s Guardian [2016] NSWCATAD 240
Hearing dates: 12 May 2016
Date of orders: 26 October 2016
Decision date: 26 October 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
E Hayes, General Member
Decision:
(1) The decision of the respondent dated 4 February 2015 to refuse to grant the applicant a clearance is set aside.
(2) In substitution for that decision, the following decision is made; The applicant is granted a Working with Children Check clearance

Catchwords: CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Application to exclude evidence – Inability to test evidence – Absence of witness – No information of availability of witness – Weight of evidence in absence of testing of evidence – Fairness to party – No presumption of risk s27
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Child Protection (Prohibited Employment) Act 1998(Repealed)
Civil and Administrative Tribunal Act 2013
Criminal Records Act 1991
Cases Cited: Children and Young People v FZ [2011] NSWCA 111
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
R v Commission for Children and Young People [2002] NSWIRComm 101
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BKE v Children’s Guardian [2015] NSWSC 523
J v Lieschke [1987] HCA 4; (1987) 162 CLR 447
Children’s Guardian v BRL [2016] NSWSC 1206
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Category: Principal judgment
Parties: CBN (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
Legal Aid (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510362
Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify 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

On 25 June 2015 the applicant applied for administrative review in the Tribunal of a decision of the respondent to refuse a working with children check clearance. That decision was made on 4 February 2015.
The Applicant in these proceedings is referred to as "CBN". CBN is the applicant's pseudonym used in these proceedings.
The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30 (1) of the Child Protection (Working with Children) Act 2012, the…

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.

Continue reading CBN v Children's Guardian

Details

AGLC: CBN v Children's Guardian [2016] NSWCATAD 240
Case: [2016] NSWCATAD 240
Decision Date: 26 October 2016

CaseChat Overview and Summary

In the matter of CBN v Children's Guardian, the court was called upon to review a decision by the respondent, the Children's Guardian, to refuse to grant the applicant, CBN, a clearance under the Working with Children Act. The dispute centred around allegations of criminal activity against the applicant, which had been raised during the clearance process, and the subsequent refusal to grant the clearance on the basis of these allegations. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the decision of the Children's Guardian to deny the applicant's clearance was lawful and whether the process undertaken was fair. Specifically, the court had to consider whether the evidence against the applicant was adequately tested, given that the key witness was unavailable and no information was provided regarding the possibility of their future availability. Additionally, the court examined the weight that could be given to untested evidence and whether the process adhered to principles of fairness and the relevant statutory provisions.

The court found that the decision of the Children's Guardian was flawed due to the lack of opportunity to test the evidence against the applicant. The court emphasised that in the absence of the ability to cross-examine the key witness, the weight of the evidence was significantly diminished. The court also noted that the principles of natural justice and fairness were not upheld, as the applicant was unable to adequately respond to the allegations due to the absence of the witness. Consequently, the court determined that the decision to deny the clearance was not supported by proper process and evidence. The court also highlighted that there was no presumption of risk under section 27 of the Working with Children Act.

In light of these findings, the court set aside the decision of the Children's Guardian and substituted it with a decision to grant the applicant a Working with Children Check clearance. This decision underscored the importance of fair process and the necessity for evidence to be tested before adverse findings are made against an individual.

Orders

Orders of the court

(1) The decision of the respondent dated 4 February 2015 to refuse to grant the applicant a clearance is set aside.

(2) In substitution for that decision, the following decision is made; The applicant is granted 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

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Citations

AGLC Citation

CBN v Children's Guardian [2016] NSWCATAD 240

Most Recent Citation

CLF v Children's Guardian [2017] NSWCATAD 9

Cases citing this decision · 3 of 3 shown

CLR v Children's Guardian
[2017] NSWCATAD 158

…YU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BYR v Children's Guardian [2013] NSWADT 310 CBN v Children’s Guardian [2016] NSWCATAD 240 CHB v Children’s Guardian [2016] NSWCATAD 214 CMA v Children’s Guardian [2016] NSWCATAD 264 Children’s Guardian v BRL [2016] NSWSC 1206 Commission for Children and You…
CEV v Children's Guardian
[2017] NSWCATAD 10

…v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BYR v Children's Guardian [2013] NSWADT 310 CBN v Children’s Guardian [2016] NSWCATAD 240 Children’s Guardian v BRL [2016] NSWSC 1206 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ […
CLF v Children's Guardian
[2017] NSWCATAD 9

…ice of the Children’s Guardian [2015] NSWCATAD 264 at [41]. BYR v Children's Guardian [2013] NSWADT 310 CBN v Children’s Guardian [2016] NSWCATAD 240 Children and Young People v FZ [2011] NSWCA, Children’s Guardian v BQP [2016] NSWSC 109 Children’s Guardian v BRL [2016] NSWSC 1206 Commission for Children and Young Peo…

View all 3 citing cases →

Cases cited in this decision · 21 of 21 shown

Office of the Children's Guardian v CFW
[2016] NSWSC 1406 Para 101

…In the matter of Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Harrison J. observed the following concerning the approach arising from observations made in BKE.…
Children's Guardian v BRL
[2016] NSWSC 1206 Para 80

…The case of Children’s Guardian v BRL [2016] NSWSC 1206 revisiting the matters addressed in FZ. At Paragraph 36 Fagan J. observes:…
BSR v Office of the Children's Guardian
[2015] NSWCATAD 264 Para 41

…although it is not necessarily fatal to an applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41]. 17.A court or tribunal may make a finding of “real and appreciable risk” even though it is not satisfied on the balance of probabilities that the re…
BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 68

…In oral submissions the applicant outlined how considerations in the case of BKE ( BKE v Children’s Guardian [2015] NSWSC 523) is different to the current matter. The Tribunal as taken to what the applicant submitted was the relevant standard or test for considering the evidence. In respect of the principles outlin…
BJB v NSW Office of the Children's Guardian (No 2)
[2014] NSWCATAD 164 Para 25

…been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32]. The Supreme Court has also recently observed that no party bars an onus in administrative review proceedings (to which an application under…
BFX v Children's Guardian
[2014] NSWCATAD 115 Para 31

…proval in 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 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.…
BJB v Office of the Children's Guardian
[2014] NSWCATAD 111 Para 24

…The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young…
BFC v The Children's Guardian
[2014] NSWCATAD 90 Para 31

…The remarks have also been cited with approval in 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 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.…
AYU v NSW Office of the Children's Guardian
[2014] NSWCATAD 69 Para 24

…otective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002…
ADV v Commission for Children and Young People
[2012] NSWADT 8 Para 30

…n section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998 : see ADV v Commission for Children and Young People [2012] NSWADT 8.…
Commission for Children and Young People v FZ
[2011] NSWCA 111 Para 5

…protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.…
Commission for Young People v V
[2002] NSWSC 949 Para 29

…The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) A…
M v M
[1988] HCA 68

…the risk of any adult preying on a child”: Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office…
J v Lieschke
[1987] HCA 4 Para 77

…Amongst a line of cases addressing the admissibility of evidence Counsel referred to the case of J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 to indicate when the rules of natural justice might be flexible, such as where there was a provision of the legislature to specifically override a principle or common la…
Re JRL; Ex parte CJL
[1986] HCA 39

…ral justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred: see Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986) 60 ALJR 528; 66 ALR 239.…
Kioa v West
[1985] HCA 81

…sdiction is conferred, the application of those principles would have to be qualified: see Kioa v. West (Minister for Immigration and Ethnic Affairs) [1985] HCA 81; (1985) 60 ALJR 113, at pp 141,148-149; [1985] HCA 81; 62 ALR 321, at pp 370,383- 384. In some custody proceedings, some qualification of the princip…
R v Ludeke; Ex parte Customs Officers' Association of Australia
[1985] HCA 31

…ich a plenary right to be heard may be qualified, even in curial proceedings: see Reg. v. Ludeke; Ex parte Customs Officers' Association of Australia [1985] HCA 31; (1985) 155 CLR 513, at pp 520, 522-523,528,530. Like the Chancery jurisdiction in wardship, the jurisdiction of the Court under s.82 of the Act is t…
Twist v Randwick Municipal Council
[1976] HCA 58

…9. The general principle which governs this case is clearly established. It is stated by Barwick C.J. in Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 in these terms (at pp 109-110): " The common law rule that a statutory authority having power to affect the rights of a person is bound to…
Commissioner of Police v Tanos
[1958] HCA 6

…nistrative agencies and, a fortiori, the proceedings of the established courts: see per Dixon C.J. and Webb J. in The Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383, at p 396. That is not to say that the content of the principles of natural justice to be applied by a court take no account of th…
R v Commission for Children and Young People
[2002] NSWIRCOMM 101 Para 24

…AD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].…
(1965) AC 201
(1965) AC 201

…se care the child should be. It may be said of the jurisdiction under s.82 what Lord Evershed said of the wardship jurisdiction in In re K. (Infants) (1965) AC 201, at p 219: " The jurisdiction ... is surely ... very special, and being very special the extent and application of the rules of natural justice must…

Legislation cited in this decision · 8

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 13)
Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 29)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 3)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 4)
Commission for Children and Young People Act 1998 (NSW)
1 mention (from Para 30)
Commissioner for Children and Young People Act 1998 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 35)
Criminal Records Act 1991 (NSW)
1 mention (from Para 94)

Medium Neutral Citation:	CBN v Children’s Guardian [2016] NSWCATAD 240
Hearing dates:	12 May 2016
Date of orders:	26 October 2016
Decision date:	26 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member E Hayes, General Member
Decision:	(1) The decision of the respondent dated 4 February 2015 to refuse to grant the applicant a clearance is set aside. (2) In substitution for that decision, the following decision is made; The applicant is granted a Working with Children Check clearance
Catchwords:	CHILD Protection – Working with children – Findings in respect of criminal allegations – Evidence – Application to exclude evidence – Inability to test evidence – Absence of witness – No information of availability of witness – Weight of evidence in absence of testing of evidence – Fairness to party – No presumption of risk s27
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013 Criminal Records Act 1991
Cases Cited:	Children and Young People v FZ [2011] NSWCA 111 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIRComm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Children’s Guardian [2015] NSWSC 523 J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Children’s Guardian v BRL [2016] NSWSC 1206 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Category:	Principal judgment
Parties:	CBN (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: Legal Aid (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510362
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify 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.