CSW v Children's Guardian

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Civil and Administrative Tribunal

New South Wales

Case Name: 

CSW v Children’s Guardian

Medium Neutral Citation: 

[2017] NSWCATAD 326

Hearing Date(s): 

23 February 2017, 9 May 2017(Directions 30 May 2017 - submissions closed 30/6/2017)

Date of Orders:

10 November 2017

Decision Date: 

10 November 2017

Jurisdiction: 

Administrative and Equal Opportunity Division

Before: 

J McAteer Senior Member
R Royer General Member

Decision: 

(1) The decision of the respondent dated 3 August 2016 to cancel the applicant’s Working with Children Check clearance is set aside.
 
(2) In substitution for that decision, the following decision is made:
The respondent issue to the applicant a Working with Children Check clearance

Catchwords: 

CHILD Protection – Working with children – Risk – Real and appreciable – Administrative review – Lack of positive finding – Discretion to conduct risk assessment

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Child Protection (Prohibited Employment) Act 1998(Repealed)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
Mental Health (Forensic Provisions) Act 1990

Cases 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
CHB v Children’s Guardian [2016] NSWCATAD 214
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
CYY v Children’s Guardian (No. 2) [2017] NSWCATAD 262
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: 

Butterworth’s Concise Australian Legal Dictionary (second edition)
LexisNexis Concise Australian legal Dictionary 4th Edition.

Category: 

Principal judgment

Parties: 

CSW (Applicant)
Children’s Guardian (Respondent)

Representation: 

Counsel:
E Windsor (Respondent)
 
Solicitors:
Salvos Legal (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 

2016/00378365, 1610608

Publication Restriction: 

Section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

  1. On 26 September 2016 the applicant applied for administrative review in the Tribunal of a decision of the respondent to cancel a working with children check clearance. That decision was made on 3 August 2016.

  2. The Applicant in these proceedings is referred to as "CSW". CSW is the applicant's pseudonym used in these proceedings in conformity with the order referred to in paragraph 4 (below).

  3. The applicant seeks a finding by the Tribunal that she does not pose a…

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Details
Case
[2017] NSWCATAD 326
Decision Date

CaseChat Overview and Summary

The case of CSW v Children's Guardian involved an applicant, CSW, who sought an administrative review of a decision by the Children's Guardian to refuse a working with children check clearance. The applicant contested the refusal under the relevant provisions of the Working with Children (Risk Management and Screening) Act 2012. The matter was heard and determined by the Civil and Administrative Tribunal of New South Wales.

The legal issues before the Tribunal included whether the refusal of the clearance was justified and whether the Tribunal had the discretion to conduct its own risk assessment. The applicant argued that the refusal was not supported by sufficient evidence and that the Tribunal had the authority to assess the risk independently. The Children's Guardian contended that the refusal was appropriate based on the information available at the time and that the Tribunal should not substitute its own judgment for that of the Guardian.

In determining the case, the Tribunal considered the factors set out in section 30 of the Act, including the seriousness of the offences, the time since the offences occurred, and the likelihood of repetition. The Tribunal also noted that its jurisdiction was protective rather than punitive and that it was not bound by the same evidentiary standards as a criminal court. The Tribunal concluded that the refusal was not supported by the evidence and that the applicant had not been given a fair opportunity to respond to the allegations. The Tribunal found that it had the discretion to conduct its own risk assessment and that, in doing so, it was not substituting its judgment for that of the Children's Guardian but rather exercising its independent statutory authority.

The Tribunal set aside the decision of the Children's Guardian to refuse the clearance and ordered that a Working with Children Check clearance be issued to the applicant. The Tribunal emphasised that its role was to ensure that the decision-making process was fair and that the applicant's rights were protected. The Tribunal's decision highlighted the importance of procedural fairness and the need for the Children's Guardian to provide adequate reasons for its decisions.

Orders

Orders of the court

(1) The decision of the respondent dated 3 August 2016 to cancel the applicant’s Working with Children Check clearance is set aside.

(2) In substitution for that decision, the following decision is made:

The respondent issue to the applicant a Working with Children Check clearance

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

Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a clearance (see section 27 (1)). The section relevantly provides: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....(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.(5), (6) (Repealed)(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides:30 Determination of applications and other matters(1) The Tribunal must consider the following in determining an application under this Part:(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,(c) the age of the person at the time the offences or matters occurred,(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,(f) whether the person knew, or could reasonably have known, that the victim was a child,(g) the person's present age,(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,(j) any information given by the applicant in, or in relation to, the application,(k) any other matters that the Children's Guardian considers necessary. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.