CGB v Children's Guardian - [2017] NSWCATAD 182

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CGB v Children’s Guardian [2017] NSWCATAD 182
Hearing dates: 19 December 2016
Date of orders: 09 June 2017
Decision date: 09 June 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Principal Member
R Royer, General Member
Decision:
The decision of the respondent, made on 13 October 2015, to refuse the applicant’s application for a working with children check clearance is affirmed.

Catchwords: ADMINISTRATIVE REVIEW – working with children check clearance – review under s 27 of the Child Protection (Working with Children) Act 2012 (the Act) of a decision by the respondent to refuse the applicant’s application for a clearance - following a risk assessment under s 15 of the Act, the respondent was satisfied the applicant posed a risk to the safety of children – the trigger events giving rise to the requirement of a risk assessment were two charges of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 and a subsequent charge of aggravated indecent assault contrary to s 61M of the Crimes Act – a jury found the applicant not guilty of the aggravated sexual assault offences and the other charge was withdrawn and dismissed – whether on review, having regard to the factors in s 30 of the Act, the Tribunal is satisfied the applicant poses a risk to children.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013
Crimes Act 1900 (NSW)
Working with Children Act 2005 (Vic)
Cases Cited: BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264
Children’s Guardian v BRL [2016] NSWSC 1206
Commissioner for Children and Young People v FZ [2011] NSWCA 11
Commission for Children and Young People v V [2002] NSWSC 949
Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59
Holbrook and Australian Postal Commission (1983) 5 ALN N46
M v M [1988] HCA 68, (1988) 166 CLR 69
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
Category: Principal judgment
Parties: CGB (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
C McGorey (Applicant)
G Moore (Respondent)
Solicitors:
Legal Aid New South Wales (Applicant)
Office of the Crown Solicitor of New South Wales (Respondent)

File Number(s): 1510699
Publication restriction: Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of…

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: [2017] NSWCATAD 182
Decision Date: 09 June 2017

CaseChat Overview and Summary

The applicant, CGB, sought judicial review of a decision by the respondent, the Children's Guardian, to refuse their application for a working with children check clearance. The refusal was based on the respondent's assessment that CGB posed a risk to the safety of children, following charges of aggravated sexual assault and aggravated indecent assault. Although CGB was acquitted of the aggravated sexual assault charges and the other charge was withdrawn, the respondent's decision remained unchanged.

The primary legal issue was whether the Tribunal, on review, could be satisfied that CGB posed a risk to children, considering the factors outlined in section 30 of the Child Protection (Working with Children) Act 2012. This involved weighing the seriousness of the charges, the outcome of the trial, and the potential risk to children despite the acquittal.

The court found that the respondent had appropriately considered the relevant factors and was justified in their decision. The seriousness of the charges and the circumstances surrounding them warranted a detailed risk assessment. While the applicant's acquittal was a significant factor, it did not necessarily negate the potential risk they posed. The court held that the respondent's decision to refuse clearance was reasonable, given the potential risk to children.

The court affirmed the respondent's decision to refuse the applicant's application for a working with children check clearance, upholding the Tribunal's conclusion that CGB posed a risk to children.

Orders

Orders of the court

The decision of the respondent, made on 13 October 2015, to refuse the applicant’s application for a working with children check clearance is affirmed.

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:	CGB v Children’s Guardian [2017] NSWCATAD 182
Hearing dates:	19 December 2016
Date of orders:	09 June 2017
Decision date:	09 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member R Royer, General Member
Decision:	The decision of the respondent, made on 13 October 2015, to refuse the applicant’s application for a working with children check clearance is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – working with children check clearance – review under s 27 of the Child Protection (Working with Children) Act 2012 (the Act) of a decision by the respondent to refuse the applicant’s application for a clearance - following a risk assessment under s 15 of the Act, the respondent was satisfied the applicant posed a risk to the safety of children – the trigger events giving rise to the requirement of a risk assessment were two charges of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 and a subsequent charge of aggravated indecent assault contrary to s 61M of the Crimes Act – a jury found the applicant not guilty of the aggravated sexual assault offences and the other charge was withdrawn and dismissed – whether on review, having regard to the factors in s 30 of the Act, the Tribunal is satisfied the applicant poses a risk to children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 Crimes Act 1900 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 Children’s Guardian v BRL [2016] NSWSC 1206 Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 Holbrook and Australian Postal Commission (1983) 5 ALN N46 M v M [1988] HCA 68, (1988) 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
Category:	Principal judgment
Parties:	CGB (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C McGorey (Applicant) G Moore (Respondent) Solicitors: Legal Aid New South Wales (Applicant) Office of the Crown Solicitor of New South Wales (Respondent)
File Number(s):	1510699
Publication restriction:	Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of…