CSW v Children's Guardian

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.