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New South Wales |
Case Name: | CJQ v Children's Guardian |
Medium Neutral Citation: | [2016] NSWCATAD 163 |
Hearing Date(s): | 3 May 2016 |
Date of Orders: | 22 July 2016 |
Decision Date: | 22 July 2016 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | M Anderson, Senior Member |
Decision: | (1) The decision of the Children’s Guardian dated 1 December 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is affirmed. |
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(1)(b) of Schedule 1 of the Child Protection (Working with Children) Act 2012 – multiple charges of carnal knowledge and sexual assault by stepfather on his stepdaughter and 2 counts of assault occasioning actual bodily harm under Crimes Act 1900(NSW) not proceeded with by DPP after committal on charges by Magistrate to the District Court for trial - 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 posed by the applicant to the safety welfare and well-being of children - paramount concern is the safety welfare and well-being of children and in particular protecting children from child abuse- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse a working with children check clearance. |
Legislation Cited: | Administrative Decisions Review Act 1997(NSW) |
Cases Cited: | ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 |
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- Case
- [2016] NSWCATAD 163
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework, particularly section 4 of the Act, which mandates that the safety, welfare, and well-being of children, with a focus on protecting them from child abuse, is the paramount consideration. The court also noted the absence of a specific definition of "child abuse" within the Act, but referenced the related concept in the Children and Young Persons (Care and Protection) Act 1998. The court highlighted the importance of the Children’s Guardian's role in assessing the risk posed by individuals seeking clearance and the legislative intent to prevent certain individuals from engaging in child-related work if they pose a risk to children.
After reviewing the evidence, including multiple charges against CJQ for carnal knowledge and sexual assault on his stepdaughter, and considering the paramount legislative objective of protecting children, the court concluded that the Children’s Guardian's decision to refuse the clearance was indeed the correct and preferable decision. The court found that CJQ posed a real and appreciable risk to the safety, welfare, and well-being of children, thereby upholding the decision of the Children’s Guardian.
The final orders of the court affirmed the decision of the Children’s Guardian, dated 1 December 2015, to refuse CJQ a working with children check clearance under the Child Protection (Working with Children) Act 2012. This decision underscores the importance of stringent safeguards in ensuring that individuals who have been charged with, or convicted of, offences against children are not permitted to engage in work involving children unless it can be demonstrated that they do not pose a risk to children's safety and welfare.
Orders
Orders of the court
(1) The decision of the Children’s Guardian dated 1 December 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is affirmed.
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
The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:"Safety, welfare and well-being of children to be paramount considerationThe safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:“Child and young person abuseA person who intentionally takes action that has resulted in or appears likely to result in:(a) the physical injury or sexual abuse of a child or young person, or(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or(c) the physical development or health of a child or young person being significantly harmed,is guilty of an offence.Maximum penalty: 200 penalty units.” The objects of the Act are set out in section 3 which provides:"Object of ActThe object of this Act is to protect children:(a) by not permitting certain persons to engage in child-related work, and(b) by requiring persons engaged in child-related work to have working with children check clearances." "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years." Pursuant to section 15 of the Act the Children’s Guardian is permitted to conduct an assessment of the applicant. No issue was taken about the assessment being triggered pursuant to sections 14, 15 (1) and clause 1 (1) (b) of Schedule 1 of the Act. That is because proceedings were commenced against the applicant alleging that he indecently and physically assaulted his stepdaughter between the ages of 12 and 18. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.