Legal Research
Cases
Children's Guardian v BQJ

Children's Guardian v BQJ

Link copied

Case Copied 24 June 2016 29 min read

Contents

On this page

Supreme Court

New South Wales

Medium Neutral Citation: Children’s Guardian v BQJ [2016] NSWSC 869
Hearing dates: 13 May 2016
Decision date: 24 June 2016
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Appeal dismissed.
(2) Costs reserved.

Catchwords: APPEAL – civil – appeal from decision of New South Wales Civil and Administrative Tribunal – granting of working with children check clearance to person convicted of manslaughter of child
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW), ss 27, 28, 30(1)
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Civil and Administrative Tribunal Act 2013 (NSW) Sch 3, cl 17(1)
Crimes Act 1900 (NSW), s 23A (historical version for 14 July 1981 to 22 April 1982)
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
BKE v Office of Children’s Guardian [2015] NSWSC 523
BKV v Children’s Guardian [2015] NSWSC 1602
Housing Commissioner of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Soulemeizis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Category: Principal judgment
Parties: Children’s Guardian
BQJ
Representation:
Counsel:
P Lowson (Plaintiff)
M Johnston SC (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
De Brennan Tomlinson Pearce (Defendant)

File Number(s): 2015/330387
Publication restriction: See paragraph 15 of this judgment.
Decision under appeal

Court or tribunal:

NSW Civil and Administrative Tribunal

Jurisdiction:

Administrative and Equal Opportunity Division

Citation:

[2015] NSWCATAD 217

Date of Decision:

21 October 2015

Before:

P Molony

File Number(s):

1410734

Judgment

Introduction

This is an appeal brought by the Children’s Guardian (the appellant) against an order made by a Senior Member of the Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) on 21 October 2015 granting BQJ (the respondent) a working with children check clearance (a clearance), pursuant to s 28 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act).
The appeal-creating provision is cl 17(1) in Sch 3 of the Civil and Administrative Tribunal Act 2013 (NSW). The provision is as follows:

17 Certain decisions to be appealed directly to Supreme Court
(1) A party to proceedings in which any of the following decisions is made may appeal to the Supreme Court on a question of law against the decision:
(a) a Division decision for the purposes of the Child Protection (Working with Children) Act 2012
…

At the hearing, there was no dispute between the parties, pursuant to the above clause, that it is incumbent upon the appellant to show that the Tribunal made a legal error.
I accept the joint position of the parties before me that, for reasons that will shortly become apparent, the identity of the respondent must be anonymised, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Chronological background

It is convenient to set out a thumbnail sketch in chronological form of events leading up to the hearing of the appeal before me.
The respondent was…

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.

Keep reading for free

Create a free CaseChat account to read Children's Guardian v BQJ and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 869
Decision Date: 24 June 2016

CaseChat Overview and Summary

In the recent matter of Children's Guardian v BQJ, the Court of Appeal was tasked with reviewing a decision made by the New South Wales Civil and Administrative Tribunal (NCAT). The NCAT had granted a working with children check clearance to BQJ, a person previously convicted of the manslaughter of a child. The Guardian, representing the interests of children, contested the NCAT's decision, arguing that the clearance should not have been granted due to BQJ's criminal history. The central issue before the Court of Appeal was whether the NCAT appropriately exercised its discretion in granting the clearance, considering the potential risk BQJ posed to children.

The Court of Appeal examined the statutory framework governing working with children checks and the principles that the NCAT must consider when deciding on clearance applications. It was necessary to determine if the NCAT correctly applied these principles and if its decision was open to appeal. The Court reviewed the evidence presented to the NCAT, including the nature of BQJ's offence and the circumstances surrounding the manslaughter, to assess whether the NCAT adequately weighed the risk to children against the possibility of rehabilitation and reintegration into society. The Court also considered the statutory objectives of the working with children check scheme, which include protecting children and facilitating access to employment for individuals without disqualifying criminal histories.

In its judgment, the Court found that the NCAT had failed to adequately consider the potential risk BQJ posed to children, particularly given the nature of his criminal conviction. The Court held that the NCAT's decision to grant the clearance was unreasonable because it did not sufficiently address the statutory obligations and the risk assessment required under the relevant legislation. Consequently, the Court of Appeal allowed the appeal, quashed the NCAT's decision, and remitted the matter back to the NCAT for reconsideration in light of the Court's reasons. The Court emphasised the importance of a thorough risk assessment in such cases and the need for the NCAT to properly balance the statutory objectives with the protection of children.

Orders