CZI v Children's Guardian

The case of CZI v Children’s Guardian involved the applicant, a long-serving teacher, who sought an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) to overturn a decision by the Children's Guardian that he could not obtain a Working With Children Check Clearance due to past convictions. The applicant had been convicted of two charges of carnal knowledge under section 71 of the Crimes Act 1900 (NSW) over forty years ago, for which he received a good behaviour bond and recognizance under section 556A of the same act. The applicant argued that these convictions should not disqualify him from working with children, considering his long history of employment as a teacher and the significant passage of time since the convictions. The court was required to determine whether it had the jurisdiction to grant a stay of the Children's Guardian notification and an interim enabling order, and if so, whether such an order should be granted.

The legal issues that arose in this case centred on the interpretation of the Child Protection (Working with Children) Act 2012 (NSW) and its applicability to the applicant's circumstances. Specifically, the court had to consider whether the applicant's past convictions constituted a "conviction" for the purposes of section 5 of the Act and whether these convictions were "disqualifying offences" under section 4. The court also needed to assess the factors relevant to the application for a stay of the notification, including the paramount concern of protecting children from abuse, and whether granting a stay would be in the best interests of the children. Additionally, the court had to consider whether the applicant's age and the significant time elapsed since the convictions should influence the decision.

In reaching its decision, the court determined that it did not have the jurisdiction to grant an interim enabling order or a stay of the Children’s Guardian notification. The court held that the application for a stay was not an application for an enabling order, and therefore, the provisions of the Act did not apply. The court also found that even if the application was considered as an enabling order application, the court would not exercise its discretion to grant such an order. The paramount consideration was the protection of children from abuse, and the court found that the applicant's past convictions were relevant and significant. The court emphasised that the applicant's age and the length of time since the convictions did not negate the seriousness of the offences. Consequently, the application for a stay was dismissed, and no interim enabling order was granted.

The court made several orders in this case. Firstly, the application for a stay of the Children’s Guardian notification dated 17 February 2017 was dismissed. Secondly, the court prohibited the publication or broadcast of the names of any persons mentioned in the proceedings, except for expert witnesses and officers of government agencies, under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. This order was intended to protect the identities of the parties involved, particularly given the sensitive nature of the case.