CBN v Children's Guardian

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.