CHT v Children's Guardian

[2016] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CHT v Children’s Guardian [2016] NSWCATAD 203
Hearing dates:	29 July 2016
Date of orders:	02 September 2016
Decision date:	02 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson, Senior Member E Hayes, General Member
Decision:	The application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person – whether applicant has discharged onus to rebut statutory presumption that he poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 M v M [1988] HCA 68; 166 CLR 69
Category:	Principal judgment
Parties:	CHT (Applicant) NSW Office of the Children’s Guardian (Respondent)
Representation:	Counsel: M Johnston (Applicant) V Harstein (Respondent) Solicitors: Dignan and Hanrahan (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510769
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcast without the leave of the Tribunal.

REASONS FOR DECISION

Background

1. On 13 March 2012, the Applicant applied to the Commission for Children and Young People for review of Prohibited Employment Status. That application was refused, and the Applicant made application to the Administrative Decisions Tribunal (the predecessor to this Tribunal).

2. On 28 March 2013, the Applicant withdrew his application to the Administrative Decisions Tribunal.

3. On 22 October 2015, the Applicant applied to the Office of the Children’s Guardian (the Respondent) for a Working with Children Check clearance.

4. On 19 November 2015, the Respondent notified the Applicant that his criminal history had disclosed a disqualifying offence, namely, a conviction for possession of child pornography, and as a disqualified person he is not be granted a working with children check clearance.

5. On 9 December 2015, the Applicant made this application to the Tribunal for an order that he is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (“an enabling order”).

The working with children legislative scheme

6. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (Child Protection (Working with Children) Act 2012, s.3).