CDF v Wesley Dalmar, CLE v Children’s Guardian
[2016] NSWCATAD 187
•19 August 2016
|
New South Wales |
Case Name: | CDF v Wesley Dalmar, CLE v Children’s Guardian |
Medium Neutral Citation: | [2016] NSWCATAD 187 |
Hearing Date(s): | On the papers |
Date of Orders: | 19 August 2016 |
Decision Date: | 19 August 2016 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | S Higgins, Principal Member |
Decision: | (1) The application of CDF is dismissed. |
Catchwords: | ADMINISTRATIVE REVIEW – identification of decision the subject of review – whether that decision is a reviewable decision – the applicants for review were a husband and wife – both were authorised as out-of-home cares and were holders of a working with children check clearance (clearance) – the husband was subsequently charged with a number of “disqualifying offences” prescribed in Schedule 2 of the Child Protection (Working with Children) Act 2012 – the husband’s clearance was cancelled by the Children’s Guardian – the charges laid against the husband were subsequently withdrawn and he sought review of the decision to cancel his clearance. After the husband lodged his application for review the Children’s Guardian imposed an interim bar on him. The wife also sought review of a decision to suspend her clearance and authorisation – applications for review were misconceived |
Legislation Cited: | Administrative Decisions Review Act 1997 |
Category: | Procedural and other rulings |
Parties: | CDF (Applicant - 1610099) |
Representation: | Counsel: |
File Number(s): | 1610099 and 1610100 |
Publication Restriction: | Section 64(1)(a) and 65(2) of the Civil and Administrative Tribunal Act 2013 – non publication or broadcasting of names and identification of the applicant, witnesses or any other person mentioned or involved in the proceedings without the leave of the Tribunal |
REASONS FOR DECISION
This decision concerns a preliminary issue as to the Tribunal’s jurisdiction to hear and determine the respective applications of the applicants, of CDF (Mrs C) and CLE (Mr C), for administrative review of decisions of Wesley Dalamar and Children’s Guardian. Mrs C seeks review of the decision of sought review the decision of Wesley Dalmar to suspend her authorisation as a carer under the Children and Young Persons (Care and Protection) Act 1998 (Care Act). Wesley Dalmar contends that no decision was made in this regard and that Mrs C’s authorisation was suspended by operation of law.
Mr C seeks review of a decision of the Children’s Guardian to cancel his wwcc clearance under the Child Protection (Working with Children) Act 2012 (WWC Act) and to subsequently impose an interim bar on him under that Act. The Children’s Guardian contends that Mr C’s application for review is premature as Mr C has no right to seek review until six months after he was notified of the interim bar. Mr C contends, the bar was effective from the time his wwcc clearance was cancelled and the six month period expired in June. Hence, the Tribunal does have jurisdiction.
For the reasons that follow, I find:
(a)in regard to Mrs C’s application for review – Wesley Dalmar did not make a decision to suspend her authorisation, her authorisation was suspended under clause 42D of the Children and Young Persons (Care and Protection) Regulation 2012 (Care Regulation). Hence there is no decision of Wesley Dalmar that is reviewable by the Tribunal; and
(b)in regard to Mr C’s application for review – following the dismissal of the charges laid against him the only reviewable decision of the Children’s Guardian is the decision to impose an interim bar on him and in this regard his application for review is premature because six months has not expired since he was notified of that decision.
Background
The applicant and her husband were authorised as out-of-home carers under section 137 of the Care Act. When they were authorised as carers is not clear. However, on 9 July 2013, they were each granted a wwcc clearance by the Children’s Guardian.
On 16 February 2016, Mrs C and Mr C, each lodged an application seeking review of a decision to suspend and cancel their respective wwcc clearance and their authorisation as carers. They each identified the decision maker of the decision for which they sought to be reviewed to be that of the Children’s Guardian and Wesley Dalmar.
Both applications came before Magistrate Deputy President Hennessy, on 24 March 2016, for directions.
Attached to the application of Mr C was a letter from the Children’s Guardian, to Mr C, dated 25 September 2015, notifying him of the decision of the Guardian to cancel his wwcc clearance because he was a disqualified person having been charged with an offence falling within Schedule 2 of the WWC Act: see WWC Act, subsection 18(1). The offences of which Mr C was charged was an offence under section 61J (aggravated sexual assault) and section 61M (aggravated indecent assault) of the Crimes Act 1900.
I understand the children who had been placed into the care of Mr and Mrs C by Wesley Dalmar were also removed from their care at the time Mr C’s wwcc clearance had been cancelled.
Attached to the application of Mrs C was a letter from Wesley Dalmar, dated 7 December 2016, advising Mr and Mrs C that due to the cancellation of Mr C’s wwcc clearance “the OCG have automatically suspended all carers residing in the home, including [Mrs C].” Also attached to the Mrs C’s application was a copy of Mrs and Mr C’s entry on the Carer’s Register maintained by the Children’s Guardian which identified Mr and Mrs C having valid wwcc clearances.
On 24 March 2016, Magistrate Deputy President Hennessy noted that Mr C’s solicitor required a letter from the Children’s Guardian in regard to: (a) the current status of Mr C’s wwcc clearance as the charges had been dismissed, and (b) whether or not any decision had been made to suspend Mrs C’s wwcc clearance.
Both applications came before me, on 7 April 2016, at a further directions hearing. In regard to Mr C’s application I ordered the Children’s Guardian to inform the parties of the status of Mr C’s wwcc clearance. In regard to Mrs C’s application I made the following orders:
(1)On or before 15 April 2016, the applicant to file and serve an amended application.
(2)The applicant’s application to review a decision that her working with children check clearance is suspended is withdrawn as no such decision has been made.
(3)The Children’s Guardian is removed as a respondent in these proceedings.
I also made an order that both applications be adjourned for further directions on 21 April 2016.
Both applications came before me, on 21 April 2016. In regard to the application of Mr C, Ms K Kless, solicitor for the Children’s Guardian, advised that on 15 April 2016, the Children’s Guardian notified Mr C of its decision to impose an interim bar on him pursuant to section 17 of the WWC Act. Ms Kless also submitted the Tribunal had no jurisdiction to review that decision as the interim bar had not been in place for more than six months: see WWC Act section 27(3). Mr Hagan, solicitor for Mr C requested time to put on submissions in response to the application of no jurisdiction. Accordingly, I made an order that the applicant file and serve written submissions by 6 May 2016 and listed the matter for dismissal or further directions on 12 May 2016.
In regard to the application of Mrs C, on 21 April 2016, there was no appearance by or on behalf of Wesley Dalmar. Accordingly, I also adjourned the application for further directions on 12 May 2016.
On 12 May 2016, both applications came before Magistrate Deputy President Hennessy at the adjourned directions hearing. Magistrate Deputy President Hennessy noted Mr Hagan, solicitor for Mr and Mrs C, had filed submissions in which he contended the Tribunal had jurisdiction to hear and determine: (a) Mr C’s application for review of the decision of the Children’s Guardian and (b) Mrs C’s application for review of the decision of Wesley Dalmar to suspend Mrs C’s authorisation as a carer. In light of these submissions, Magistrate Deputy President Hennessy made an order in each application that the respondent was to file and serve submissions on jurisdiction and that the issue of jurisdiction was to be determined on the papers after that date.
Written submissions were filed in accordance with the orders made.
The Tribunal’s administrative review jurisdiction
Section 30(1) of the Civil and Administrative Tribunal Act 1997 (NCAT Act) provides that the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator is that set out in the Administrative Decisions Review Act 1997 (ADR Act).
Section 9(1) of the ADR Act provides that:
“The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of and decision (or class of decision) made by the administrator:
(a) in the exercise of functions conferred or imposed by or under the legislation, or
(b) in the exercise of any other functions of the administrator identified by the legislation.”
The term “enabling legislation” is defined in section 4(1) of the ADR Act to mean as follows:
“enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that:
(a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or
(b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.”
In this case the relevant “enabling legislation” is section 28 of the Community Services (Complaints, Review and Monitoring) Act 1993 (Community Services Act) and section 27 of the WWC Act.
Section 28(1) of the Community Services Act prescribes a number of decisions made under differing community services legislation to be an administratively reviewable decision under the ADR Act, including decisions made under section 245 of the Care Act. Section 245 of the Care Act relevantly provides as follows:
245 Decisions that are administratively reviewable by Civil and Administrative Tribunal
(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993:
(a) a decision of the relevant decision-maker to suspend a person’s authorisation as an authorised carer or to impose conditions on a person’s authorisation,
(a1) a decision of the relevant decision-maker to cancel a person’s authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137 (2) (e),
(b) …
…
(2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children’s Court.”
As explained below, in this application the relevant decision maker for the purpose of section 245 of the Care Act is the respondent, Wesley Dalmar.
Section 27 of the WWC Act makes provision for specified decisions of the Children’s Guardian to be administratively reviewable by the Tribunal. That section relevantly provides as follows:
“Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions
(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(2) A person whose clearance is cancelled by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(3) A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.
(4) …”
The Care Act and Regulation
Chapter 8 of the Care Act makes provision for out-of-home care for children in need of care by a person other than a parent of the child and that care is to be provided at a place other than the usual home of a child. There are three types of out-of-home care, including “statutory out-of-home care”: see Care Act sections 135(2) and 135A. Section 136 provides that statutory out-of-home care can only be provided by an “authorised carer” and providing such care without authorisation is an offence.
Section 137(1) of the Care Act defines the term “authorised carer” as follows:
“137 Authorised carers
(1) In this Act, authorised carer means:
(a) the principal officer of a designated agency, or
(b) a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency, or
(c) a person who, in accordance with the regulations, is otherwise authorised as an authorised carer, or
(d) subject to the regulations, a person who is assessed to be suitable to be approved to adopt a child under section 45 of the Adoption Act 2000.”
The term “designated agency” is defined in section 139 of the Care Act. There is no dispute that the respondent Wesley Dalmar is a designated agency under the Act.
Clause 30(1) of the Children and Young Persons (Care and Protection) Regulation 2012 (Care Regulation) provides that a natural person can apply to a designated agency to be authorised as a carer. Clause 30(4) provides that a designated agency is not to authorise a person as a carer unless the agency determines the person is capable and suitable to be a carer. Clause 30(5) prescribes a number of matter of which the designated agency must be satisfied in order to find the person is capable and suitable to be a carer. Included in these matters is a requirement that the agency is satisfied that the person and any adult residing in the property with the person has complied with the requirements of the WWC Act for engaging in child related work as an authorised carer: Care Regulation clause 30(5)(b).
Clause 42 of the Care Regulation makes provision for the suspension and cancellation of an authorisation of a carer by a designated agency. That clause relevantly provides:
“42 Cancellation or suspension of authorisations by designated agencies
A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer:
(a) is no longer a suitable person to be an authorised carer, or
(b) has failed to comply with any condition of the authorisation, or
(c) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or
(d) has failed to comply with a written direction to the authorised carer by the designated agency or the Children’s Guardian under section 157 (3) of the Act, or
(e) has failed to uphold the Charter of Rights prepared under section 162 of the Act.
Note. Under section 245 (1) (a) of the Act, a decision to cancel or suspend the authorisation of an authorised carer is administratively reviewable by the Civil and Administrative Tribunal.”
Clause 42B of the Care Regulation makes provision for the automatic cancellation of a carer’s authorisation in circumstances where the authorised carer ceases to meet the requirements of the WWC Act. That clause is in the following terms:
“42B Automatic cancellation—working with children requirements no longer met
(1) The authorisation of a person as an authorised carer is automatically cancelled if the person:
(a) no longer has a working with children check clearance or a current working with children application, or
(b) is subject to an interim bar.
(2) The cancellation of the authorisation takes effect:
(a) when the person is notified that the person’s current working with children application has been terminated or refused or that the person’s clearance has been cancelled or that the person is subject to an interim bar, or
(b) …
(3) The designated agency that supervises the out-of-home care of a child or young person in the care of a person whose authorisation is cancelled under this clause must, within 48 hours of becoming aware of that cancellation, ensure that the child or young person no longer resides with the person (unless the person’s authorisation is revived under this clause before the end of those 48 hours).
(4) The authorisation of a person may be revived (by the designated agency that authorised the person) at any time within 2 years after the cancellation of the authorisation under this clause took effect, if the person:
(a) has a working with children check clearance or a current working with children application, and
(b) is not subject to an interim bar.”
Clause 42D makes provision for the automatic suspension of an authorisation where an adult person who resides on the same property as an authorised carer does not have a wwcc clearance or is subject to an interim bar. I have set out the terms of that provision below.
The WWC Act
The WWC Act came into force on 15 June 2013.
Subsection 8(1) of the WWC Act prohibits a person from engaging in “child-related work”, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
Section 6 and 7 of the WWC Act broadly defines the term “child-related work” and includes the role of an authorised carer under the Care Act: see WWC Act, subsection 6(3)(c).
Subsection 10(1) of the WWC Act provides that “an adult person (other than an exempt person) who resides on the same property as an authorised carer … must hold a working with children check clearance (of any class) or have made a current application” to the respondent for a clearance.
Division 1 to 4 of Part 3 of the WWC Act makes provision for the making of an application for a clearance and how the respondent is to determine them. Section 18, in Division 4, sets out how the Children’s Guardian, is to determine an application for a clearance. That section provides as follows:
“18 Determination of applications for clearances
(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):
(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,
(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.
(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.
(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.”
Included in the offences specified in Schedule 2 (i.e. a disqualifying offence) is an offence under section 61J (aggravated sexual assault) and section 61M (aggravated indecent assault) under the Crimes Act 1900: see WWC Act, Schedule 2 clause 1(1)(e).
Section 14, in Division 3 of Part 3 of the WWC Act, provides that a person is subject to a risk assessment requirement under section 15 of the Act “if any of the matters specified in Schedule 1 apply to the person.” Clause 1(1) of Schedule 1 is in the following terms:
“Schedule 1 Assessment requirement triggers
1 Offences
(1) Proceedings have been commenced against a person:
(a) for an offence specified in clause 1 of Schedule 2, if the offence was committed as a child (whatever the outcome of the proceedings), or
(b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.”
Section 17, in Division 3 of Part 3 of the WWC Act makes provision for the imposition of an interim bar on a person during the course of a risk assessment by the Children’s Guardian. That section provides:
“17 Interim bars
(1) The Children’s Guardian may, at any time after receiving an application for a working with children check clearance or commencing an assessment of an applicant for or holder of a clearance, determine that the applicant or holder is subject to an interim bar, being a bar on the applicant or holder doing any of the following:
(a) engaging in child-related work,
(b) residing on the same property as an authorised carer,
(c) residing on a property where a home based education and care service or family day care service is provided.
(2) The Children’s Guardian may make a determination under this section if it is of the opinion that it is likely that there is a risk to the safety of children if the applicant or holder engages in child-related work or resides on a property referred to in subsection (1) (b) or (c) pending the determination of the application or assessment.
(3) The Children’s Guardian must as soon as practicable after determining that an applicant or holder is subject to an interim bar, give written notice of that determination to the applicant or holder and to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the applicant or holder.
(4) An interim bar ceases to have effect:
(a) on notification in writing by the Children’s Guardian to the applicant or holder that the interim bar is revoked, or
(b) in the case of an applicant for a clearance, if the applicant is granted or refused a clearance, or
(c) 12 months after the interim bar takes effect,
whichever occurs first.”
Division 5 of Part 3 makes provision for the duration, cancellation and surrender of a clearance. Section 23 in Division 5 deals with the cancellation of a clearance and provides as follows:
“23 Cancellation of clearances
(1) The Children’s Guardian must cancel the working with children check clearance of a person if the Children’s Guardian becomes aware that the person is a disqualified person or the Children’s Guardian is satisfied that the person poses a risk to the safety of children.
(2) The Children’s Guardian must notify the holder of the clearance in writing of the Children’s Guardian’s decision to cancel the clearance.
(3) Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.
(4) The Children’s Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.”
As noted above, subsection 18(1) of the WWC Act prescribes the circumstances when a person is a “a disqualified person.” It includes circumstances where the holder of a clearance has been charged with a Schedule 2 offence (i.e. disqualifying offence) and the charges are pending determination.
Where an application for a wwcc clearance has been refused or cancelled under section 23, section 13A of the WWC Act provides that a further application cannot be made for five years after being notified of the refusal or the cancellation, unless there are changed circumstances. That section is in the following terms:
“13A Embargo after refusal of application or cancellation of clearance
(1) A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance:
(a) until 5 years after the date notice of the refusal or cancellation was given to the person, or
(b) unless there has been a change of circumstances under which a further early application is permitted under this section.
(2) A further early application is permitted if any of the following occurs after the date of the refusal or cancellation:
(a) proceedings that were pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence,
(b) a finding of guilt is quashed or set aside,
(c) a finding the subject of an assessment requirement is quashed or set aside or otherwise expressly or impliedly ceases to have effect,
(d) the Children’s Guardian permits a person to make such an application.”
Does the Tribunal have jurisdiction to hear and determine Mr C’s application for review of the decision of the Children’s Guardian?
The Children’s Guardian submits that the Tribunal does not have jurisdiction to review her decision to impose an interim bar on Mr C, as six months has not expired since the interim bar was imposed.
The Children’s Guardian submitted that on being informed of the charges laid against Mr C, she was mandated to cancel his wwcc clearance pursuant to subsection 23(1) of the WWC Act because the offences were disqualifying offences. Having had his wwcc clearance cancelled, subsection 13A(1) provided that he was not entitled to make a further application for a clearance for five years, unless there had been a change of circumstances under which a further or early application was permitted.
The Children’s Guardian conceded that when the charges laid against Mr C were dismissed, on 2 February 2016, he was no longer a disqualified person. However, it was submitted the dismissal of the charges did not give rise to his wwcc clearance being revived. It was submitted the withdrawal of the charges only entitled the applicant to make a fresh application for a wwcc clearance as the withdrawal amounted to changed circumstances warranting the making of a fresh application.
Ms Douglas-Baker, counsel for the Children’s Guardian, advised that where a wwcc clearance had been cancelled on the basis of a person having been charged with a disqualified offence and subsequently the charges are dismissed, the Children’s Guardian has a practice to treat such persons as having made a further early application for a wwcc clearance under subsection 13A(2)(a) of the WWC Act. At the same time, in light of the person having been charged with a disqualifying offence, the Children’s Guardian was is also required to conduct a risk assessment in processing the application, by reason of section 14 of the WWC Act. It was in this context the Children’s Guardian imposed the interim bar on Mr C, on 15 April 2016. A right for review of that decision, it was noted, did not arise until six months after Mr C was notified of that decision, namely not until 15 October 2015, unless the interim bar is revoked prior thereto.
Mr Hagan, solicitor for Mr C, pointed to the inconsistent terminology of the correspondence Mr and Mrs C received from Wesley Dalmar in December 2015 and that provided by the Children’s Guardian in April 2016. He explained it was the understanding of Mr C and Mrs C that Mr C had been “barred” under the WWC Act from December 2015 and on this basis the six month period would expire in June 2016.
Mr Hagan went on to submit that Mr C pressed his application for review of the decision of the respondent to cancel his wwcc clearance. He said the Children’s Guardian had proceeded, without the consent of Mr C, to deem or imply that he had made an application to re-apply for a clearance and it was on this basis that a interim bar was imposed. I understand Mr Hagan to submit that in the absence of Mr C’s consent, the Children’s Guardian’s decision to impose an interim bar was null and void and the Tribunal was obliged to refer the matter to the Supreme Court.
Mr Hagan also contended that as at the time Mr C lodged his application for review no decision had been made in regard to the imposition of an interim bar the Tribunal continues to be vested with jurisdiction to review the decision of the Children’s Guardian to cancel his wwcc clearance.
In my opinion, Mr Hagan’s submissions must be rejected.
It is a matter for Mr C if he wishes to challenge the validity of the decision of the Children’s Guardian to impose an interim bar in the Supreme Court. Subject to the six month requirement, the decision is nevertheless a decision that is reviewable by the Tribunal as the notification of the Children’s Guardian was in terms a decision “purported” to have been made under section 17 of the WWC Act. In this regard the word “decision” is broadly defined in subsection 6 (2) and (3) of the ADR Act to include the following:
(2) Decision made under enabling legislationFor the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation
(3) Decisions made without powerFor the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it.
In any event, in my view, it can be inferred from Mr C’s conduct in lodging his application for review of the decision of the Children’s Guardian to cancel his wwcc clearance that he was in essence re-applying for a clearance.
I agree with the Children’s Guardian that the decision to impose the interim bar was made on 15 April 2016, and hence the Tribunal has no jurisdiction to review that decision as the prescribed six months since Mr C was notified of the decision has not expired.
In regard to the decision of the respondent to cancel Mr C’s wwcc clearance, this decision was made in September 2015 on the basis of the charges laid against him. Mr C’s application for review of that decision was lodged outside the prescribed 28 days within which to lodge such an application and there has been no request to extend time: see WWC Act subsection 27(2) and NCAT Act section 41.
There is otherwise no dispute that once the Children’s Guardian became aware the charges laid against Mr C and the charges were pending determination by a court she was required to cancel his wwcc clearance, by reason of subsection 23(2) of the WWC Act, once she. That is, the Children’s Guardian did not have any discretion in this regard. At the time Mr C lodged his application for review, the charges were no longer pending as they had been dismissed by the court. As the pending charges were the only basis on which the decision to cancelled Mr C’s wwcc clearance had been made, at the time he lodged his application for review there was nothing to review because the facts on which the decision was made no longer existed.
The WWC Act does not contain a provision that on dismissal or withdrawal of pending charges that a decision to cancel the person’s wwcc clearance is revoked and the clearance is re-instated. However, in such circumstances section 13A of the WWC Act does contain a mechanism for making an early re-application for a wwcc clearance after charges have been dismissed. In my opinion, this mechanism is inconsistent with the legislative scheme set out in the WWC Act. In effect section 13A, makes provision for persons who have had their wwcc clearance cancelled on the basis of pending charges of a disqualifying offence and those charges are subsequently withdrawn or dismissed, an opportunity to be assessed, under sections 14 and 15 of the WWC Act. Section 14, provides that a person is “subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.” As I have noted, the offences with which Mr C was charged and the fact that they were subsequently withdrawn, was a matter specified in Schedule 1. Subsection 15 of the WWC Act provides that the Children’s Guardian must conduct a risk assess of an applicant for, or the holder of a wwcc clearance to determine whether that person poses a risk to the safety of children. Accordingly, had the Children’s Guardian not become aware of the pending charges prior to them being withdrawn, Mr C would nevertheless be subject to a risk assessment.
Finally, by reason of clause 42B of the Care Regulation, Mr C’s authorisation is automatically cancelled because he is subject to an interim bar imposed on him by the Children’s Guardian. Contrary to the submissions of Mr Hagan, there are no administrative review rights of this automatic cancellation as Mr C’s authorisation was cancelled by operation of law and not by reason of a decision made by Wesley Dalmar under the Care Act or the Care Regulation.
Accordingly, I find the Tribunal has no jurisdiction to hear and determine Mr C’s application for review. This does not mean that such a right may not arise sometime in the future.
Does the Tribunal have jurisdiction to hear and determine Mrs C’s application?
Mr Graham, on behalf of Wesley Dalmar, submitted that in regard to Mrs C’s application for review there was no decision to review and on this basis her application should also be dismissed.
Mr Graham acknowledged that the letter from Wesley Dalmar to Mr C and Mrs C, dated 7 December 2015, was poorly directed and worded. In this regard he acknowledged that at no time was Mrs C’s wwcc clearance suspended or cancelled. In this regard, I note, the WWC Act does not vest the Children’s Guardian with a general power to suspend a wwcc clearance. However, she has the power to impose an interim bar on the holder of a wwcc clearance in circumstances prescribed in section 17 of the WWC Act. No such decision has been made in regard to Mrs C.
Mr Graham contended that the letter from Wesley Dalmar otherwise made it clear that Mrs C’s authorisation had been automatically suspended pursuant to clause 42D of the Care Regulation. That clause provides as follows:
“42D Automatic suspension of authorisation
(1) In this clause:
inappropriate resident means a person who resides on the same property as an authorised carer and who is required to have a working with children check clearance or a current working with children application in order to reside on that property and who:
(a) does not have a working with children check clearance or a current working with children application, or
(b) is subject to an interim bar.
(2) The authorisation of a person as an authorised carer is automatically suspended if an inappropriate resident resides on the same property as the authorised carer.
(3) The suspension of the authorisation takes effect when the authorised carer is notified that an inappropriate resident resides on the same property as the authorised carer.
(4) A suspension under this clause ceases to have effect if no inappropriate resident resides on the same property as the authorised carer.
(5) The designated agency that supervises the out-of-home care of a child or young person in the care of an authorised carer must, within 48 hours of becoming aware that an inappropriate resident resides on the same property as the authorised carer, ensure that the child or young person no longer resides with the authorised carer (unless the suspension of the authorised carer ceases to have effect under this clause before the end of those 48 hours).”
I agree the December letter Wesley Dalmar’s sent to Mr and Mrs C is confusing and very poorly worded, what is clear is that while Mr C continues to reside in the home of Mrs C, clause 42D of the Care Regulation applies in that Mrs C’s authorisation is automatically suspended.
Mr Graham submits that by reason of this clause there is no decision of Wesley Dalmar that is reviewable because the suspension operates as matter of law.
I understand the position of Mr and Mrs C has not changed in that Mr C continues to reside in the home.
Accordingly, for similar reasons set out in paragraph 57 above, Wesley Dalmar has not made a decision to suspend Mrs C’s authorisation. It is suspended by operation of law (i.e. under clause 42D or the Care Regulation). In the event I am wrong, and the decision is a decision under clause 42 of the Care Regulation, I would find that the application for review of that decision is futile while Mr C continues to reside in the same home.
Conclusions and orders
For the reasons set out above, I have found
(a)in regard to Mrs C’s application for review – Wesley Dalmar did not make a decision to suspend her authorisation, her authorisation was suspended under clause 42D of the Children and Young Persons (Care and Protection) Regulation 2012 (Care Regulation). Hence there is no decision of Wesley Dalmar that is reviewable by the Tribunal; and
(b)in regard to Mr C’s application for review – following the dismissal of the charges laid against him the only reviewable decision of the Children’s Guardian is the decision to impose an interim bar on him and in this regard his application for review is premature, because six months has not expired since he was notified of that decision.
Accordingly, on the basis of my findings the appropriate order is to dismiss both applications.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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