CHI v Children's Guardian (No 2) - [2016] NSWCATAD 272

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CHI v Children’s Guardian (No 2) [2016] NSWCATAD 272
Hearing dates: On the Papers
Date of orders: 24 November 2016
Decision date: 24 November 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Principal Member
Decision:
(1) The Tribunal has jurisdiction to hear and determine the applicant’s application.
(2) The applicant’s application is listed for Directions 8 December 2016, at 11 am.
Catchwords:
Child Protection – working with children check clearance – respondent refused the applicant’s application for a clearance as he was a disqualified person – applicant made an application to the Tribunal for an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) (the WWC Act) – after the respondent refused the applicant’s application and before the applicant lodged his application for an enabling order, s 26 of the WWC Act was amended – whether the amended s 26 applied to the applicant, or whether the omitted s 26 continued to apply.
Statutory construction – whether s 26, as amended by cl 30 of Schedule 2 of the Child Protection Legislation Amendment Act 2015 (NSW), applied to the applicant.
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Child Protection Legislation Amendment Act 2015 (NSW)
Child Protection (Working with Children) and Other
Crimes Act 1900 (NSW)
Industrial Relations Act 1996 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: CGN v Children’s Guardian [2016] NSWCATAD 138
CHB v Children’s Guardian [2016] NSWCATAD 214
CHI v Children’s Guardian [2016] NSWCATAD 151
Category: Procedural and other rulings
Parties: CHI (Application)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Neville (Respondent)
Solicitors:
CHI (Applicant in person)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510754
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and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal.Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

reasons for decision

On 27 October 2015, the applicant, CHI, made an application to the Tribunal seeking an enabling order, under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), declaring that he not be treated as a “disqualified person” for the purpose of that Act. The applicant is a “disqualified person” by reason of his conviction in 1993 and 1994 of a “disqualifying offence” listed in Sch 2(1) of the WWC Act: see WWC, subs 18(1).
As a “disqualified person”, the applicant is presumed to pose a risk to the safety of children, unless he proves the contrary: WWC Act, subs 28(7).
Given the sensitive…

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: [2016] NSWCATAD 272
Decision Date: 24 November 2016

CaseChat Overview and Summary

The applicant in this case sought to obtain a clearance under the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) to work with children. However, the respondent, the Children’s Guardian, refused the application on the basis that the applicant was a disqualified person under the Act. The applicant then applied to the Tribunal for an enabling order under section 28 of the WWC Act. The key issue before the court was whether the amended section 26 of the WWC Act, which was introduced after the respondent’s refusal and before the applicant’s application, applied to the applicant or whether the previous version of the section continued to apply. The court had to determine whether the amended section 26 applied to the applicant’s application for a clearance.

The court found that the amended section 26 of the WWC Act applied to the applicant. The court held that the amending legislation, the Child Protection Legislation Amendment Act 2015 (NSW), did not contain any express or implied retrospective application. Therefore, the amended section 26 applied only to applications made after its commencement. The court found that the applicant's application for a clearance was made after the amended section 26 came into effect, and thus, the amended section 26 applied to the applicant. The court also held that the omission of the previous version of section 26 did not have any retrospective effect, and therefore, it did not apply to the applicant’s application.

The court found in favour of the applicant and held that the Tribunal had jurisdiction to hear and determine the applicant’s application. The applicant’s application was listed for directions on 8 December 2016 at 11 am. The court did not make any further orders in relation to the applicant’s application for an enabling order.

Orders

Orders of the court

(1) The Tribunal has jurisdiction to hear and determine the applicant’s application.

(2) The applicant’s application is listed for Directions 8 December 2016, at 11 am.

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:	CHI v Children’s Guardian (No 2) [2016] NSWCATAD 272
Hearing dates:	On the Papers
Date of orders:	24 November 2016
Decision date:	24 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	(1) The Tribunal has jurisdiction to hear and determine the applicant’s application. (2) The applicant’s application is listed for Directions 8 December 2016, at 11 am.
Catchwords:	Child Protection – working with children check clearance – respondent refused the applicant’s application for a clearance as he was a disqualified person – applicant made an application to the Tribunal for an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) (the WWC Act) – after the respondent refused the applicant’s application and before the applicant lodged his application for an enabling order, s 26 of the WWC Act was amended – whether the amended s 26 applied to the applicant, or whether the omitted s 26 continued to apply. Statutory construction – whether s 26, as amended by cl 30 of Schedule 2 of the Child Protection Legislation Amendment Act 2015 (NSW), applied to the applicant.
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Child Protection (Working with Children) and Other Crimes Act 1900 (NSW) Industrial Relations Act 1996 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	CGN v Children’s Guardian [2016] NSWCATAD 138 CHB v Children’s Guardian [2016] NSWCATAD 214 CHI v Children’s Guardian [2016] NSWCATAD 151
Category:	Procedural and other rulings
Parties:	CHI (Application) Children’s Guardian (Respondent)
Representation:	Counsel: M Neville (Respondent) Solicitors: CHI (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510754
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 a victim or child is not to be published or broadcasted without the leave of the Tribunal.Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.