DAI v Children's Guardian

Case [2017] NSWCATAD 308

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DAI v Children’s Guardian [2017] NSWCATAD 308
Hearing dates:4 August 2017
Date of orders: 25 October 2017
Decision date: 25 October 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
A Jones, General Member
Decision:

(1) The decision of the Children’s Guardian dated 16 November 2016 to refuse the applicant’s working with children check clearance is set aside.

 (2) In substitution for that decision, the following decision is made: The applicant is granted a working with children check clearance.
Catchwords: Administrative Law - s27 of the Children Protection (Working with Children) Act 2012 - refusal of working with children check clearance - child assault conviction - common assault conviction - long crime free period - whether applicant poses a risk to the safety of children - clearance granted.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Cases Cited: AHV v NSW Commission for Children and Young People [2012] NSWADT 263
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA
R v Commission for Children and Young People [2002] NSWIRComm 101
Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143
VQB v The Secretary to the Department of Justice [2013] VCAT 789
Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143
Category:Principal judgment
Parties: DAI (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
M Neville (Applicant)
M Giacomo (Respondent)

  Solicitors:
Legal Aid Commission of NSW (Applicant)
NSW Crown Solicitors Office (Respondent)
File Number(s):2017/00100166
Publication restriction:Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REasons for decision

Introduction

  1. The applicant, who will be referred to as DAI, is the 59-year-old father of two adult children. He requires a working with children check clearance to work as a bus driver. For this reason, he applied for a working with children check clearance on 4 May 2016.

  2. The Children’s Guardian, who is the respondent in this case, has the power to undertake a risk assessment under s15 of the Child Protection (Working with Children) Act 2012 (‘the Act’). Section 18(2) of the Act provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

  3. The applicant was subject to a risk assessment because of his conviction for…

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Dai v Children's Guardian [2017] NSWCATAD 308
Case
[2017] NSWCATAD 308
Decision Date

CaseChat Overview and Summary

The applicant, Dai, applied for a working with children check clearance under the Children Protection (Working with Children) Act 2012. The application was refused by the Children's Guardian, based on Dai's convictions for common assault and child assault, and the Guardian's belief that Dai posed a risk to the safety of children. Dai sought judicial review of the Guardian's decision, arguing that the refusal was unreasonable and that he had served a long crime free period. The court was required to determine whether the Guardian's decision was legally sound and whether the applicant's risk to the safety of children was adequately considered.

The court held that the Guardian was required to consider all relevant factors when deciding whether to grant a clearance, including the nature of the convictions, the time that had elapsed since the convictions, and the applicant's prospects of rehabilitation. The court found that the Guardian had failed to adequately consider these factors and had instead placed undue weight on the convictions without sufficient regard to the applicant's long crime free period. The court also found that the Guardian had not provided sufficient reasons for its decision, which was a breach of the principles of natural justice. The court set aside the Guardian's decision and granted the applicant a working with children check clearance in its place.

The court's decision highlights the importance of considering all relevant factors when making a decision under the Children Protection (Working with Children) Act 2012. The court emphasised that a long crime free period can be a significant factor in assessing an applicant's risk to the safety of children, and that the decision-maker must provide sufficient reasons for their decision. The court's decision also reinforces the principle that a person should not be denied an opportunity to work with children solely on the basis of past convictions, where those convictions are sufficiently remote in time and the applicant has demonstrated rehabilitation.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 16 November 2016 to refuse the applicant’s working with children check clearance is set aside.

(2) In substitution for that decision, the following decision is made: The applicant is granted a working with children check clearance.

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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