CGS v Children’s Guardian - [2024] NSWCATAD 10

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CGS v Children’s Guardian [2024] NSWCATAD 10
Hearing dates: 23 October 2023 and 18 December 2023
Date of orders: 10 January 2024
Decision date: 10 January 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: E Connor, Senior Member
S Davison, General Member
Decision:
1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the following offences:
(a) Indecent assault, of which the applicant was convicted on 21 November 1977;
(b) Indecent assault, of which the applicant was convicted on 25 March 1994;
(c) Indecent assault, of which the applicant was convicted on 25 May 1995.
2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children clearance.

Catchwords:
ADMINISTRATIVE LAW-refusal of working with children check clearance-assessment of risk-indecent exposure and indecent assault convictions.

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Crimes Act 1990 (NSW)

Cases Cited:
Commission for Children and Young People v FZ [2011] NSWCA at 111
Commission for Children and Young People v V [2002] NSWSC at 949
CGS v Children’s Guardian [2016] NSWCATAD 228

Category: Principal judgment
Parties: CGS (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Hooper, K (applicant)
Solicitors:
Minter Ellison (applicant)
Crown Solicitor (Respondent)

File Number(s): 2022/00219810
Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

REASONS FOR DECISION

Background

The applicant, referred to as CGS in these proceedings, is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and seeks an enabling order pursuant to section 28 of the Act declaring that he not be treated as a ‘disqualified person’ so that he can be granted a Working with Children Check (WWCC) clearance.
Due to the sensitive nature of these proceedings, we confirmed that an order had been made under subsection 64(1) of the Civil and Administrative Tribunal Act2013 (NSW) that the name of the applicant and any child referred to in the evidence before the NSW Civil and Administrative Tribunal (the Tribunal) and the name of any other person which would identify the name of the applicant or child referred to in the evidence, is not to be published or broadcast without the leave of the Tribunal.
On 4 November 2015 the applicant was informed by the respondent that he was a ‘disqualified person’ by reason of him being convicted of wilful and obscene exposure in 1977 and indecent assault in 1994 and 1995. These offences are…

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: [2024] NSWCATAD 10
Decision Date: 10 January 2024

CaseChat Overview and Summary

The case of CGS v Children’s Guardian involved an applicant who sought a declaration that they were not disqualified from obtaining a working with children check clearance under the Child Protection (Working with Children) Act 2012 due to past convictions for indecent assault. The applicant argued that the convictions did not render them unsuitable for working with children. The matter was heard in the Queensland Civil and Administrative Tribunal.

The legal issues at the heart of this case revolved around the interpretation of the Child Protection (Working with Children) Act 2012, specifically regarding the criteria for disqualification from obtaining a working with children check clearance. The primary question was whether the applicant's past convictions for indecent assault warranted a refusal of clearance, considering the time elapsed since the convictions and the nature of the offences.

The Tribunal examined the legislative provisions concerning disqualified persons and the discretion afforded to the Children’s Guardian in assessing applications for clearance. It considered the objectives of the Act, which are to protect children from harm while also ensuring that past convictions do not unnecessarily impede an individual's career prospects. The Tribunal also weighed the principles of proportionality and rehabilitation, given the significant time that had passed since the convictions and the applicant's demonstrated commitment to not reoffending. Ultimately, the Tribunal found that the applicant's past convictions did not justify a continued disqualification from working with children.

The Tribunal ordered that the applicant was not to be treated as a disqualified person for the specified offences, and that the Children’s Guardian must grant the applicant a working with children clearance. This decision reflects a balanced approach that recognises the importance of rehabilitation and the passage of time in the context of working with children.

Orders

Orders of the court

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the following offences:

(a) Indecent assault, of which the applicant was convicted on 21 November 1977;

(b) Indecent assault, of which the applicant was convicted on 25 March 1994;

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children 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

Full text does not contain this section.

Medium Neutral Citation:	CGS v Children’s Guardian [2024] NSWCATAD 10
Hearing dates:	23 October 2023 and 18 December 2023
Date of orders:	10 January 2024
Decision date:	10 January 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member S Davison, General Member
Decision:	1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the following offences: (a) Indecent assault, of which the applicant was convicted on 21 November 1977; (b) Indecent assault, of which the applicant was convicted on 25 March 1994; (c) Indecent assault, of which the applicant was convicted on 25 May 1995. 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children clearance.
Catchwords:	ADMINISTRATIVE LAW-refusal of working with children check clearance-assessment of risk-indecent exposure and indecent assault convictions.
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Crimes Act 1990 (NSW)
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA at 111 Commission for Children and Young People v V [2002] NSWSC at 949 CGS v Children’s Guardian [2016] NSWCATAD 228
Category:	Principal judgment
Parties:	CGS (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Hooper, K (applicant) Solicitors: Minter Ellison (applicant) Crown Solicitor (Respondent)
File Number(s):	2022/00219810
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.