CQJ v Children's Guardian

[2016] NSWCATAD 263

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CQJ v Children’s Guardian [2016] NSWCATAD 263
Hearing dates:	8 September 2016
Date of orders:	18 November 2016
Decision date:	18 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	1. The respondent’s application that the applicant has no standing to bring his application for an enabling order is dismissed.  2. The applicant’s application is listed for further directions on 8 December 2016, at 12 noon.
Catchwords:	ADMINISTRATIVE LAW - Child Protection – statutory construction – proper construction of subs 23(1) of the Child Protection (Working with Children) Act 2012 (the Act) and the Part 4 review and appeal rights of a person whose working with children check clearance is cancelled on the grounds of being charged with an offence and the charges are pending determination.   Proper construction of subs 26(1)(c) of the Act, as it applied in June 2016, and whether it includes a person whose working with children check clearance is cancelled on the grounds of being charged with a Sch 2 offence (disqualifying offence) and the charges are pending determination disqualifying offence
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) Crimes Act 1900 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [2009] HCA 41
Category:	Procedural and other rulings
Parties:	CQJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: G Moore (Respondent)   Solicitors: CQJ (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1610430
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and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal.

reasons for decision

1. On 11 May 2016, the respondent cancelled the applicant’s working with children check clearance (clearance) under subs 23(1) of the Child Protection (Working with Children) Act 2012 (WWC Act), because she became aware that he was a “disqualified person.” He became a disqualified person when he was charged by police, on 10 May 2016, with a number of offences contrary to ss 61I (sexual assault) and 61L (indecent assault) of the Crimes Act 1900. These offences are “disqualifying offences” listed in cl 1(1)(e) of Sch 2 of the WWC Act: see also WWC Act, subs 18(1)(b).

2. The applicant, CQJ, has made an application seeking review of the decision of the respondent.

3. Given the sensitive nature of proceedings such as these, on 21 July 20016, with the consent of the respondent, I made an order pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, that 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.

4. As a preliminary issue, the respondent contends the applicant is prohibited from bringing this application by reason of subs 26(1)(c) of the WWC Act. At the time the applicant lodged his application (July 2016), that subsection relevantly provided:

“26   Persons not entitled to apply for review or enabling order

(1)  The following persons are not entitled to make an application under this Part:

(a) ….

…

(c)  a person whose application for a working with children check clearance has been refused wholly or partly on the grounds that proceedings have been commenced against the person for an offence specified in Schedule 2 and the proceedings have not been finally determined.”

5. It is the contention of the respondent that having regard to the purpose of s 26, the objects of the WWC Act, and the distinction that is made in Part 4 of the Act between persons who have had their applications “refused” and those that have had their clearance “cancelled”, subs 26(1)(c) should be construed to include a cancellation of a clearance on the grounds of a pending Sch 2 disqualifying offence.

6. For the reasons set out below, I disagree with the contentions of the respondent and find that the applicant’s circumstances do not fall within subs 26(1)(c) of the WWC Act, as it applied when the applicant lodged his application. Hence he has a right to bring this application under Part 4 of the WWC Act. That application is in effect an application for an enabling order under s 28 of the WWC Act because the applicant is a disqualified person whilst the charges remain outstanding. As a disqualified person there is a presumption he poses a risk to the safety of children and the onus is on the applicant to prove the contrary.

7. My findings in regard to the proper construction of subs 26(1)(c) is limited because that subs was recently amended (25 October 2016) to include a specific reference to a person “whose application for a working with children check clearance has been cancelled”, on the grounds that proceedings have been commenced against the person for an offence specified in Schedule 2 and the proceedings have not been finally determined: see Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016, Sch 1, cl 6. That is, by reason of this recent amendment, such persons have no standing to bring an application under Part 4 of the WWC Act, until after the charges have been determined and the pre-requisites for bringing such an application have been satisfied (i.e. a refusal of a further application for a clearance and the person is not excluded from bringing the application).

Background to CQJ’s application

8. CQJ, is a former bus driver. The charges laid against the applicant in May 2016 arose from a complaint made by his wife to police. The applicant explained he has had an acrimonious separation from his wife. He said her allegations were false and that he is defending the charges.

9. The applicant’s employer suspended his employment as a bus driver after it was informed about the cancelation of the clearance, as it was required to do: see WWC Act, s 9.

10. On 18 July 2016, the applicant lodged his Administrative Review Application form with the Tribunal. The applicant also lodged an application for a stay of the decision of the respondent.

11. The applicant’s application and application for a stay came before me on 21 July 2016. On this day, an order was made, by consent, extending time within which the applicant was to lodge his application. The applicant’s application for a stay was stood over to 11 August 2016. On 11 August 2016, I refused the applicant’s application for a stay. At the conclusion of the hearing, counsel for the respondent raised the question as to whether the applicant had standing to bring an application for an enabling order. That application was heard on 8 September 2016. At the conclusion of the hearing I reserved my decision.

The WWC Act

12. The WWC Act came into operation on 15 June 2013. The object of the Act is set out in section 3 which provides:

“3   Object of Act

The 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.”

13. Section 4 of the WWC Act provides that “the 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.”

14. The provisions of the WWC Act are divided into seven Parts, with each Part dealing with a different subject matter. The Parts that are relevant to this application are Parts 2, 3 and 4. I have dealt with the relevant provisions in each Part below.

Part 2: Restrictions on child-related work

15. Part 2 (ss 6 to 11B) of the WWC Act sets out a number of the restrictions on “child-related work”. Sections 6 and 7 define what is meant by “child-related work.” It is broadly defined in these sections and includes “transport services for children” (i.e.“school bus services and taxi services for children with a disability and supervision of school road crossings): see WWC Act, subs 6(2)(l).

16. The meaning of the word “worker” is broadly defined in s 5(1) of the WWC Act to mean:

“ … any person who is engaged in work in any of the following capacities:

(a)  as an employee,

(b)  as a self-employed person or as a contractor or subcontractor,

(c)  as a volunteer,

(d)  as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience),”

17. Subs 8(1) of the WWC Act prohibits a person from engaging in “child-related work”, unless:

1. the person holds the relevant working with children check clearance, or

2. there is a current application, by the person, to the respondent for the relevant working with children check clearance.

18. Subs 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

Part 3: Working with children check clearances

19. Part 3 (ss 12 to 25) of the WWC Act makes provision for applications for a clearance, how such applications are to be assessed and determined, the duration and termination of a clearance and the establishment of the working with children register. Section 13 in this Part provides that applications for a clearance are to be made to the respondent.

20. Section 18 prescribes how the respondent is to determine an application for a clearance. Subs 18(1) deals with applicants who are “disqualified persons” and is in the following terms:

“18   Determination of applications for clearances

(1)  The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a)  a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b)  a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.”

21. Subs 18(2) deals with applicants who are not “disqualified persons” but who are subject to a “risk assessment” under s 15 of the WWC Act. That subs provides as follows:

“(2)  The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.”

22. Subs 15(1) of the WWC Act provides that the respondent “must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the [respondent] becomes aware that the applicant or holder is subject to an assessment requirement.” (underlining added)

23. Section 14 of the WWC Act provides that “a person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.” The assessment triggers in Sch 1 include circumstances where proceedings have been commenced against a person for an offence specified in cl1 of Sch 2 (i.e. a “disqualifying offence”), if the offence was committed as an adult, and the person is not because of those proceedings a “disqualified person” (see WWC Act, Sch 1 cl 1(1)(b)). That is, an assessment trigger includes persons who have been charged with a disqualifying offence and those charges were withdrawn or dismissed.

24. Sch 1 also includes convictions for a number of specified offences that are not “disqualifying offences” and disciplinary matters.

25. The respondent is otherwise given a wide discretion to conduct a risk assessment of a person seeking a clearance and also of a holder of a clearance” WWC Act, subs 15(3).

26. Subs 18(3) provides that the respondent must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment.

27. Under s 20 of the WWC Act, the respondent is required to notify a person of her decision as to whether the person’s application for a clearance has been refused or granted. That section relevantly provides as follows:

“20   Notice of final decision granting or refusing clearance

(1)  The Children’s Guardian must notify the applicant in writing of the Children’s Guardian’s decision to grant or refuse to grant a working with children check clearance.

(2)  Notice of a decision to grant a clearance must include the working with children number.

(3)  Notice of a decision not to grant a clearance must set out the reasons for the refusal and the right to seek a review under Part 4.

(4)  … “

28. The duration of a clearance is five years “after the date it is granted, unless it is sooner cancelled or surrendered”: see WWC Act, subs 22(1).

29. Sections 23 and 24 of the WWC Act make provision for the cancellation and surrender of a clearance. Subs 23(1) of the WWC Act relevantly provides:

“23   Cancellation of clearances

(1)  The Children’s Guardian must cancel the working with children check clearance of a person if the Children’s Guardian becomes aware that the person is a disqualified person or the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(2)  The Children’s Guardian must notify the holder of the clearance in writing of the Children’s Guardian’s decision to cancel the clearance.

(3)  Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.

(4)  …”

30. Where a person has had his/her application for a clearance refused, or has had his/her clearance cancelled, s 13A of the WWC Act provides that the person cannot make a further application for a clearance for five years, unless the circumstance prescribed in that section arise. That section relevantly provides:

“13A   Embargo after refusal of application or cancellation of clearance

(1)  A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance:

(a)  until 5 years after the date notice of the refusal or cancellation was given to the person, or

(b)  unless there has been a change of circumstances under which a further early application is permitted under this section.

(2)  A further early application is permitted if any of the following occurs after the date of the refusal or cancellation:

(a)  proceedings that were pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence,

(b)  a finding of guilt is quashed or set aside,

(c)  a finding the subject of an assessment requirement is quashed or set aside or otherwise expressly or impliedly ceases to have effect,

(d)  the Children’s Guardian permits a person to make such an application.”

Part 4: Reviews and appeals

31. Part 4 (ss 26 to 30) of the WWC Act makes provision for administrative review of and appeals from decisions of the respondent to refuse or cancel a clearance. Section 28 in this Part relates to “disqualified persons” and at the time the applicant made his application it relevantly provided as follows:

“28   Orders relating to disqualified and ineligible persons

(1)  The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2)  The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3)  A disqualified person may make an application under this section only if:

(a)  the person has been refused a working with children check clearance, or

(b)  the person’s clearance has been cancelled,

because the person is a disqualified person.

…

(7)  In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8)  An enabling order may not be made subject to conditions.”

32. Section 27 makes provision for reviews of decision of the respondent to refuse a person’s (i.e. a person other than a disqualified person) application for a clearance, or to cancel a person’s clearance following a risk assessment. At the time the applicant made his application that section relevantly provided:

“27   Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1)  A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2)  A person whose clearance is cancelled by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(3) …”

33. Section 26 provides that disqualified persons who have been convicted of specified disqualified offences or charged with a disqualified offence and proceedings in regard to the charge are pending are not entitled to apply for a review of a decision of the respondent to refuse that person’s application for a clearance. As I have noted, at the time the applicant lodged his application (July 2016), that subsection provided:

“26   Persons not entitled to apply for review or enabling order

(1)  The following persons are not entitled to make an application under this Part:

(a) a person who has been convicted of any of the following offences, if the offence was committed as an adult and the person is a person who satisfies subsection (2):

(i)  murder,

(ii) an offence against section 61B, 61C, 61D, 61E, 61F, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 61P, 63, 65A, 66, 66F, 76, 78A, 78B, 80A, 80D, 80E or 81 of the Crimes Act 1900, if the person against whom the offence was committed was a child,

(iii)  the common law offence of rape, if the person against whom the offence was committed was a child,

(iv) an offence against section 66A, 66B, 66C, 66D, 66EA or 66EB of the Crimes Act 1900,

(v) an offence against section 67, 68, 71, 72, 72A, 73, 74 or 76A of the Crimes Act 1900,

(vi) an offence against section 78H, 78I, 78K, 78L, 78M, 78N, 78O or 78Q of the Crimes Act 1900,

(vii) an offence against section 91D, 91E or 91F of the Crimes Act 1900,

(viii) an offence against section 91G, 91H, 578B or 578C (2A) of the Crimes Act 1900,

(ix)  an oagainst section 272.8, 272.10 (if it relates to an underlying offence against section 272.8) or 272.11 of the Criminal Code of the Commonwealth,

(x)  an offence against section 272.9, 272.10 (if it relates to an underlying offence against section 272.9), 272.12, 272.13, 272.14 or 272.15 of the Criminal Code of the Commonwealth,

(xi) an offence against section 272.18, 272.19 or 272.20 of the Criminal Code of the Commonwealth, if it relates to a Class 1 offence within the meaning of the Child Protection (Offenders Registration) Act 2000,

(xii) an offence against section 273.5, 273.6, 273.7, 471.16, 471.17, 471.19, 471.20, 471.22, 471.24, 471.25, 474.19, 474.20, 474.22, 474.23, 474.24A, 474.25A, 474.25B, 474.26 or 474.27 of the Criminal Code of the Commonwealth,

(xiii) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or of child abuse material,

(xiv)  an offence an element of which is an intention to commit an offence listed in subparagraphs (i)–(xiii),

(xv)  an offence of attempting, or of conspiracy or incitement, to commit an offence listed in subparagraphs (i)–(xiii),

(b)  a person who has been convicted of an offence committed as an adult under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence referred to in paragraph (a) and the person is a person who satisfies subsection (2),

(c)  a person whose application for a working with children check clearance has been refused wholly or partly on the grounds that proceedings have been commenced against the person for an offence specified in Schedule 2 and the proceedings have not been finally determined.

(2)  A person convicted of an offence specified in subsection (1) satisfies this subsection if:

(a)  the person received a sentence of full time custody for the offence, or

(b)  any of the following orders was imposed on the person in respect of the offence and the order is in force:

(i)  a home detention order, intensive correction order or community service order under the Crimes (Sentencing Procedure) Act 1999, a good behaviour order under section 9 of that Act or an order under section 12 of that Act,

(ii) a conditional release order or recognizance release order under section 20 of the Crimes Act 1914 of the Commonwealth, or

(c)  a prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 is in force against the person.

(3)  This section applies to convictions for offences whether occurring before, on or after the commencement of this Act”.

34. Section 30 sets out the matters the Tribunal is required to consider in determining an application for admin review under s 27 and an application for an enabling order under s 28. The matters listed in s 30 are the same matters the respondent may have regard to in conducting a risk assessment under s 15.

Consideration

35. The task of statutory construction was described by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [2009] HCA 41, at 47 as follows (citations omitted):

“47. This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

36. Also of relevance is s 33 of the Interpretation Act 1987 (NSW), which provides:

“33   Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

37. There is no dispute the applicant, by reason of the pending charges for the Sch 2 disqualifying offences, is a “disqualified person” under subs 18(1)(b): see WWC Act, Sch. cl 1(1)(e). Nor is it disputed that the respondent, once becoming aware of the charges laid against the applicant, was required to cancel his clearance under subs 23(1) of the WWC Act.

38. The question is whether, subs 26(1)(c) prevents the applicant from making an application for “review”, or an “enabling order” while his criminal charges remain outstanding (i.e. not determined).

39. As I have explained, counsel for the respondent argued that the WWC Act distinguishes between persons who have been “refused” a clearance and those whose clearance is “cancelled”. It was submitted the purpose of subs 26(1)(c) is to restrict persons from commencing “review proceedings” whilst their criminal charges are pending. It was argued that if the person is convicted of the charges it would be open to the person to make an application for an enabling order and if not convicted, it would open to the person to make an application for review.

40. Counsel also submitted that it would be inconsistent with the objects of the WWC Act and contrary to the intention of Parliament to not apply subs 26(1)(c) to the present circumstances. Counsel went on to say “if the applicant was applying for a clearance” the respondent “must not grant the clearance (Section 18(1)(b)), and [the applicant] could not review the decision until the criminal proceedings are completed. In the present case the [respondent] must cancel his clearance. In both cases the [respondent’s] action is in response to the pending charge.” (bold added)

41. In my opinion, the WWC Act does not distinguish between persons who have been “refused” a clearance and those whose clearance is “cancelled” in the manner contended by the respondent. However, the Act does distinguish between those persons who are a “disqualified person” and those that are not a disqualified person, but are subject to a “risk assessment” by the respondent. In the case of the former, the respondent does not conduct a risk assessment and the refusal of a clearance or the cancellation of a clearance is made entirely on the basis of the person having been “convicted of” or “charged with and pending determination” of a Sch 2 “disqualifying offence.” In such cases, the “disqualified person” is “presumed to pose a risk to the safety of children” (see WWC Act, subs 28(7)).

42. In regard to the grounds on which the respondent must cancel a person’s clearance, these are exactly the same as those on which the respondent must refuse a person’s application for a clearance. As I have noted, subs 23(1) requires the respondent to cancel a person’s clearance where:

1. she becomes aware the person is a “disqualified person” ; and

2. she is satisfied the person poses a risk to the safety of children.

43. These grounds mirror those set out in subs 18(1) and 18(2) of the WWC Act. The only difference being that subs 18(1) also defines what is meant by the term “disqualified person” and subs 18(2) is expressed to relate to persons who are “subject to a risk assessment under Division 3”. As I have noted, s 14 defines who, other than a “disqualified person”, is subject to a risk assessment and subs 15(1) provides that in determining whether a person poses a risk to the safety of children, the respondent must conduct a risk assessment of a person where a Sch 1 assessment trigger applies. The respondent is otherwise given a wide discretion to conduct a risk assessment of a person under subs 15(3).

44. The definition of a “disqualified person” in subs 18(1) equally applies to subs 23(1). Furthermore, the subs 18(2) requirement of a risk assessment equally applies to subs 23(1) where the ground of cancellation is the respondent being satisfied the holder of a clearance poses a risk to the safety of children: see WWC Act, subs 15(1) which expressly applies to an applicant for a clearance and “the holder of a clearance.”

45. While subs 23(3) of the WWC Act appears to suggest that where a person’s clearance has been cancelled under that section, that person has a right to seek administrative review under s 27 – in my view when the word “review” is read in the context of the structure of the Act, that is not how that word is to be construed.

46. As I have explained, where the respondent cancels a person’s clearance, under subs 23(2) the respondent is required to give the person Notice of that decision. Subs 23(3) of the WWC Act requires the Notice to set out the reasons for refusal and the person’s “right to seek review under Part 4” of the Act.

47. Subs 20(2) and (3) are in exactly the same terms in regard to decisions of the respondent to refuse an application for a clearance. That is, subs 20(3) also includes a requirement that the Notice of refusal is to include the person’s “right to seek review under Part 4” of the Act.

48. Hence, the word “review” in subs 20(3) and 23(3) should be given the same meaning. In my opinion having regard to the context in which the word appears and the structure of the Act, the word should be given its ordinary meaning and not a technical/legal meaning. If Parliament had intend the word to be given a technical/legal meaning it would have included the words administrative review under the Administrative Decisions Review Act 1997, or s 27 of the Act. Instead it included the words “under Part 4.” That Part includes two avenues for review or revision – these are administrative review under s 27 and an enabling order under s 28. It is the latter which applies to “disqualified persons” and the former applying to others.

49. Again, Part 4 of the Act distinguishes between applications a “disqualified person” can make to the Tribunal and that which can be made by persons, who are not a “disqualified person” and have had their application for a clearance refused or their clearance cancelled on the grounds they pose a risk to the safety of children.

50. Accordingly, as the applicant is a “disqualified person” under subs 18(1)(b), his application is an application for an enabling order under s 28 and not an application for administrative review under s 27.

51. However, the question remains as to whether the applicant is not entitled to bring this application because his clearance was cancelled and not refused.

52. As I have explained s 26 applies to persons who make an application under Part 4 and who satisfy the requirements of that section.

53. Subs 26(1)(c) of the WWC Act, as it applied at the time the applicant lodged his application for review, made no mention of a person whose clearance had been cancelled. That section (which included subs 26(1)(c)) was inserted into the WWC Act by cl 30 of Sch. 2 of the Child Protection Legislation Amendment Act 2015 (2015 Amendment Act). That section came into effect on 2 November 2015.

54. Clause 30 of the 2015 Amendment Act also omitted s 26 as it appeared in the WWC Act prior to the amendment.

55. The omitted s 26 was in the following terms:

“26   No appeal in certain cases

A person may not make an application under this Part:

(a)  if the person has been convicted of the murder of a child, or

(b)  if the person’s application for a working with children check clearance has been refused wholly or partly on the grounds that the person has been charged with an offence and proceedings related to that offence have not been finally determined.”

56. Again, omitted subs 26(b) expressly applied to persons whose application for a clearance had been refused on the grounds of pending charges for an offence and made no mention of persons whose clearance had been cancelled by reason of pending charges. Yet the omitted subs was broader in application as it was not restricted to refusals of a clearance pending charges for a “disqualifying offence” – it applied to a charge for any offence.

57. Section 26, as inserted by the 2015 Amendment Act, was assented to on 2 November 2015. The respondent having cancelled the applicant’s clearance subsequent to that date means that it was the applicable section at the time the applicant made this application.

58. As mooted by counsel for the respondent during the course of the hearing, subs 26(1)(c) of the WWC Act was recently amended by the Child Protection (Working with Children) and other Child Protection Legislation Act 2016 (2016 Amendment Act) by the insertion of the words “or whose working with children check clearance has been cancelled”, after the word “refused”: see 2016 Amendment Act, Sch 1 cl 6.

59. Subsections 27(2) and 28(3)(b) were also amended by including the words “under section 23” after the word “cancelled.” The insertion of these words make it clear that ss 27 and 28 applied to decisions to cancel a clearance under section 23: see 2016 Amendment Act, Sch 1, cl 9 and 10. However, in my view this would have been inferred in any event as s 23 is the only section in the Ac dealing with cancelation of a clearance.

60. The provisions of the 2016 Amendment Act commenced on 25 October 2016 (see s 2) and the amendments to subs 26(1)(c) did not apply retrospectively to the application made by the applicant: see 2016 Amendment Act, Sch 1, cl 17 and s 25.

61. As I have explained, having regard to the text of subs 26(1)(c) of the WWC Act, as it applied when the applicant lodged his application with the Tribunal, it only applied to persons whose application for a clearance had been wholly or partly refused on the grounds that proceedings had been commenced against the person for an offence specified in Schedule 2 and the proceedings had not been finally determined. That is, the text did not include a person whose clearance had been cancelled in the prescribed circumstances.

62. The question is whether, having regard to the purpose or object underlying the WWC Act, subs 26(1)(c) should be construed to include such persons.

63. As I have noted, the object of the WWC Act is to protect children from risks of harm by not permitting certain persons to engage in child related-work and to require those who do work in child-related work to have a working with children check clearance. In this regard, the underlying purpose of s 26 is to prescribe those persons who are not permitted to engage in child-related work in that their application for a clearance must be refused by the respondent and they are not permitted to appeal that mandatory refusal. Hence they are unable to obtain a clearance and prohibited from engaging in child-related work (see WWC Act, ss 8 and 9). It is these persons the legislation presumes to pose a risk to the safety of children in a child-related context and should not be permitted to engage in child-related work.

64. Section 26 prescribes two categories of persons not permitted to engage in child related work. They are “disqualified persons” who have been:

1. convicted of specified disqualifying offences (e.g. murder, sexual assault, rape and child pornography) and the offence was committed against a child and for which the person received a sentence of full time imprisonment, or a non-custodial order instead of imprisonment; OR

2. charged with a disqualifying offence and proceedings in regard to the charges have not been finally determined.

65. As pointed out by the respondent, where a disqualified person falls within (b) above, that person is not excluded from making a further application for a clearance once the charge has been determined. How that application will be dealt with will depend on the outcome of the charge. For example, if the charge is dismissed, the person will not be a disqualified person but will be subject to a risk assessment by the respondent under s 15. The same would apply regardless of whether the person had his/her application for a clearance refused, or had his/her clearance cancelled on the grounds of a pending charge for a disqualifying offence.

66. As pointed out by the respondent, in determining risk of harm to children where a person is subject to a pending charge for a disqualifying offence it does not matter whether the person has been refused a clearance or had his/her clearance cancelled. The risk will be the same and on this basis the respondent argues subs 26(1)(c) should be construed more broadly to include a cancellation of a clearance on the grounds of a pending charge for a disqualifying offence.

67. To adopt such a construction would not involve giving the subsection a broad meaning to the words contained within it – it would require adding words that cannot be inferred from the words within the subsection (i.e. a refusal of an application from a clearance is not the same as a cancellation of a clearance). Nor am I persuaded that the objects of the WWC Act or the underlying purpose of s 26 require the insertion of these words as in the absence of a cancellation of a clearance being included in subs 26(1)(c) does not mean the determination of risk between those persons and those who have had their application for a clearance cancelled on such grounds differ. The only difference is that where a clearance has been cancelled on such grounds, the person is not prevented from bringing an application for an enabling order under s 28 of the WWC Act while the charge is pending. The person will however, need to determine whether it is in his/her interest to bring such an application while the charges are pending, especially as he/she bears the onus to rebut the resumption that he/she poses a risk to the safety of children as a result of the charge (subs 28(7)) and is required to fully disclose any matters relevant to his/her application (subs 28(6)). In regard to the latter, this would include the circumstances giving rise to the cancellation of the person’s clearance. That the person is defending the charge, in my view, would be of little or any relevance in discharging the onus that is on the person to rebut the presumption he/she poses a risk to the safety of children. What will be relevant are those matters set out in section 30 of the WWC Act and it is for the applicant to address these.

68. Accordingly, I find that on its proper construction, at the time the applicant lodged his application, subs 26(1)(c) of the WWC Act did not include a person whose clearance has been cancelled on grounds of a pending charge for a disqualifying offence. Hence the circumstances of the applicant do not fall within that subsection and he is not excluded from bringing this application.

Conclusion

69. For the reasons set out above, I find the applicant is not excluded from bringing his application for an enabling order under s 28 of the WWC Act. And in light of this finding the appropriate order is to dismiss the respondent’s application that the applicant has no standing to bring this application and make an order for the application to be set down for a further directions hearing so that the matter can be heard and determined as soon as possible. I also recommend the applicant seek advice as to whether it is in his interest to pursue his application in the event the charges for the disqualifying offences remain pending.

70. Orders:

1. The respondent’s application that the applicant has no standing to bring his application for an enabling order is dismissed.

2. The applicant’s application is listed for further directions on 8 December 2016 at 12 noon.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 November 2016