Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CTE v Children’s Guardian [2018] NSWCATAD 28 Hearing dates: 3 August 2017 and 25 October 2017 Date of orders: 02 February 2018 Decision date: 02 February 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Roberts, Senior Member
E Hayes, General MemberDecision: 1. The decision of the Children’s Guardian dated 22 September 2016 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
2. The Tribunal’s decision as set out in (1) takes effect on 2 March 2018, being 4 weeks after the date of the Tribunal’s decision.
3. The interim stay granted by the Tribunal on 28 October 2016 is extended until 11.59pm on 1 March 2018.
Catchwords: ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) – refusal of working with children check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – whether a working with children check clearance can be granted with conditions - whether a person can be exempted from holding a working with children check clearance - whether the applicant poses a real and appreciable risk to the safety of children Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Commission for Children and Young People Act 1998 (NSW)
Crimes Act 1900 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)Cases Cited: BJB v NSW Office of the Children’s Guardian (No. 2) 2014 NSWCAT 164
BKE v Office of Children’s Guardian [2015] NSWSC 523
BKV v Children’s Guardian [2015] NSWCATAD 65
Briginshaw v Briginshaw (1938) 60 CLR 336
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
CDX v Children’s Guardian [2016] NSWCATAD 17
CFJ v Children’s Guardian [2016] NSWCATAD 62
CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
CHB v Children’s Guardian [2016] NSWCATAD 214
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 11
CSO v Children’s Guardian [2017] NSWCATAD 346
CSW v Children’s Guardian [2017] NSWCATAD 326
CYY v Children’s Guardian [2017] NSWCATAD 262
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
Kocic v Commissioner for Police, NSW Police Force (2014) NSWLR 159
MH v Department of Justice (Occupational and Business Regulation) [2008] VCAT 1514
PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88
Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143
Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286
ZZ v Secretary, Department of Justice [2013] VSC 267Category: Principal judgment
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- AGLC
- CTE v Children's Guardian [2018] NSWCATAD 28
- Case
- [2018] NSWCATAD 28
- Decision Date
CaseChat Overview and Summary
In the case of CTE v Children’s Guardian, the applicant sought judicial review of the Children's Guardian's refusal to grant a working with children check clearance. The dispute arose under the Child Protection (Working with Children) Act 2012 (NSW), and the matter was heard by the Civil and Administrative Tribunal of New South Wales. The applicant argued that the Guardian's refusal was unreasonable and should be quashed. The Guardian contended that the refusal was justified due to the applicant's past conduct, which posed a risk to the safety of children.
The primary legal issue before the court was whether the Guardian's decision to refuse the clearance was lawful, reasonable, and justified. This involved interpreting the relevant statutory provisions, particularly section 27 of the Act, which sets out the criteria for refusal and the standard of review. The court also had to determine if a working with children check clearance could be granted with conditions or if the applicant could be exempted from holding such a clearance. Furthermore, the court needed to assess whether the applicant posed a real and appreciable risk to the safety of children.
In its decision, the Tribunal held that the Guardian's refusal to grant the clearance was reasonable and lawful. The Tribunal found that the Guardian had appropriately considered the statutory criteria and the evidence before them, which included the applicant's criminal history and potential risk to children. The Tribunal determined that the Guardian's decision was within the scope of the Act and did not constitute an error of law. Additionally, the Tribunal found that the Guardian was correct in concluding that a working with children check clearance could not be granted with conditions or that the applicant could be exempted from holding such a clearance. The Tribunal also affirmed that the applicant did indeed pose a real and appreciable risk to the safety of children.
The orders made by the Tribunal included affirming the Guardian's decision to refuse the working with children check clearance, setting a commencement date for the decision, and extending the interim stay granted by the Tribunal. The applicant's application for judicial review was thus dismissed.
The primary legal issue before the court was whether the Guardian's decision to refuse the clearance was lawful, reasonable, and justified. This involved interpreting the relevant statutory provisions, particularly section 27 of the Act, which sets out the criteria for refusal and the standard of review. The court also had to determine if a working with children check clearance could be granted with conditions or if the applicant could be exempted from holding such a clearance. Furthermore, the court needed to assess whether the applicant posed a real and appreciable risk to the safety of children.
In its decision, the Tribunal held that the Guardian's refusal to grant the clearance was reasonable and lawful. The Tribunal found that the Guardian had appropriately considered the statutory criteria and the evidence before them, which included the applicant's criminal history and potential risk to children. The Tribunal determined that the Guardian's decision was within the scope of the Act and did not constitute an error of law. Additionally, the Tribunal found that the Guardian was correct in concluding that a working with children check clearance could not be granted with conditions or that the applicant could be exempted from holding such a clearance. The Tribunal also affirmed that the applicant did indeed pose a real and appreciable risk to the safety of children.
The orders made by the Tribunal included affirming the Guardian's decision to refuse the working with children check clearance, setting a commencement date for the decision, and extending the interim stay granted by the Tribunal. The applicant's application for judicial review was thus dismissed.
Orders
Orders of the court
1. The decision of the Children’s Guardian dated 22 September 2016 to refuse to grant the applicant a Working with Children Check clearance is affirmed.
2. The Tribunal’s decision as set out in (1) takes effect on 2 March 2018, being 4 weeks after the date of the Tribunal’s decision.
3. The interim stay granted by the Tribunal on 28 October 2016 is extended until 11.59pm on 1 March 2018.
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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