Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CMQ v Children’s Guardian [2017] NSWCATAD 358 Hearing dates: 01 September 2017 Date of orders: 12 December 2017 Decision date: 12 December 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member
Prof E Foreman, General MemberDecision: (1) The decision of the respondent dated 9 February 2016 to cancel the applicant’s Working with Children Check Clearance is affirmed.
Catchwords: ADMINISTRATIVE LAW – child protection – Working with children – Criminal history – Offences of violence – Child victims – Assault Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Child Protection (Prohibited Employment) Act 1998 (Repealed)
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Records Act 1991Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
CGP v Children’s Guardian [2017] NSWCATAD 12 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179
Children’s Guardian v CKF [2017] NSWSC 893
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101
Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.Texts Cited: Nil Category: Principal judgment Parties: CMQ (Applicant)
Children’s Guardian (Respondent)Representation: Counsel:
Solicitors:
V Hartstein (Respondent)
NSW Crown Solicitor’s Office (Respondent)
File Number(s): 2016/00377964 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
REASONS FOR decision
Introduction
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On 29 March 2016 the applicant applied for administrative review in the Tribunal of a decision of the respondent to cancel the applicant’s working with children check clearance. That decision was made on 9 February 2016.
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The Applicant in these proceedings is referred to as "CMQ". CMQ is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par 4 (below).
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The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is currently a real and appreciable risk to the safety and well-being of children and young…
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- Case
- [2017] NSWCATAD 358
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the decision to cancel the clearance was lawful and whether it was unreasonable to do so. The primary issues included whether the decision-maker properly considered the relevant statutory criteria and whether the decision was disproportionate given the nature and recency of the offences and the applicant's subsequent rehabilitation. CMQ also argued that the decision failed to adequately weigh the applicant's efforts towards rehabilitation and the risk of re-offending.
The court found that the decision to cancel the clearance was neither unlawful nor unreasonable. It held that the Children's Guardian was entitled to consider the applicant's criminal history involving offences of violence against children as a significant factor. The court found that the decision-maker had appropriately exercised their discretion by cancelling the clearance, taking into account the seriousness of the offences and the risk they posed to children. The court also noted that the decision considered the statutory criteria and did not disregard any relevant information. The application for judicial review was dismissed, and the decision to cancel the clearance was affirmed.
Orders
Orders of the court
(1) The decision of the respondent dated 9 February 2016 to cancel the applicant’s Working with Children Check Clearance is affirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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