(1) The decision of the Children’s Guardian dated19 October 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is set aside. (2) The applicant CGP shall be granted a Working with Children Check clearance by the Children’s Guardian within 28 days of the date of these orders. (3) Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited.
Catchwords:
ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal – assessment trigger by clause 1(6) of Schedule 1 to the Child Protection (Working with Children) Act 2012 - whether the applicant poses a risk to the safety of children - onus of proof in a review under section 27 - a real and appreciable risk is not posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse - the correct and preferable decision is to grant a working with children check clearance.
[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
AGLC
CGP v Children's Guardian [2017] NSWCATAD 12
Case
[2017] NSWCATAD 12
Decision Date
CaseChat Overview and Summary
The case before the court involved the applicant, CGP, contesting the decision of the Children's Guardian to refuse them a Working with Children Check clearance. The crux of the dispute was whether the applicant posed a risk to the safety of children, which was pivotal in the context of the Child Protection (Working with Children) Act 2012. The matter was adjudicated in the relevant court which conducted a review under section 27 of the Act, examining the decision-making process and the evidence upon which the refusal was based.
The primary legal issues that the court had to determine were the criteria for refusal under the Act, specifically clause 1(6) of Schedule 1, and the standard of proof required in such reviews. The court examined whether the refusal was the correct and preferable decision, given the evidence presented, and whether the onus of proof was adequately discharged by the Children's Guardian. Additionally, the court had to assess whether the applicant posed a real and appreciable risk to the safety, welfare, and well-being of children, a consideration fundamental to the paramount concern of protecting children from abuse.
In reaching its decision, the court meticulously evaluated the evidence and concluded that the applicant did not pose a real and appreciable risk to children. The court found that the decision to refuse the clearance was not the correct and preferable decision, as the applicant's risk to children's safety was not substantiated by the material before the Tribunal. The court's analysis underscored the importance of safeguarding children but also emphasised the necessity for evidence to support any decision that could prevent someone from working with children.
The final orders of the court mandated the setting aside of the Children's Guardian's decision dated 19 October 2015 and directed that the applicant be granted a Working with Children Check clearance within 28 days. Furthermore, the court imposed a prohibition on the disclosure of the applicant's name and the names of any alleged victims or children mentioned in the proceedings to maintain confidentiality and protect privacy.
Orders
Orders of the court
(1) The decision of the Children’s Guardian dated19 October 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is set aside.
(2) The applicant CGP shall be granted a Working with Children Check clearance by the Children’s Guardian within 28 days of the date of these orders.
(3) Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited.