Dao v Children's Guardian - [2017] NSWCATAD 317

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: DAO v Children’s Guardian [2017] NSWCATAD 317
Hearing dates: 28 July 2017; 13 September 2017
Date of orders: 01 November 2017
Decision date: 01 November 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
Dr B Field, General Member
Decision:
(1) The decision of the Children’s Guardian dated 3 April 2017 to refuse to grant the applicant a 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.

(3) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Catchwords: Child protection – Working with children – conviction for assault occasioning actual bodily harm – 2015 amendments not applicable – application lodged only to engage in unpaid child-related work - decision set aside.
Legislation Cited: Administrative Decisions Review Act 1997
Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013
Cases Cited: 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 FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
R v Commission for Children and Young People [2002] NSWIRComm 101
Category: Principal judgment
Parties: DAO (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
M Giacomo (Respondent)
Solicitors:
NSW Crown Solicitor’s Office (Respondent)

File Number(s): 2017/00108305
Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for decision

Introduction

The applicant, who will be referred to as DAO, requires a working with children check clearance to continue working with children as a riding instructor. For this reason, she applied for a clearance in January 2015.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATAD 317
Decision Date: 01 November 2017

CaseChat Overview and Summary

The applicant, Dao, sought a review of a decision by the Children’s Guardian to deny him a working with children check clearance. This decision arose because Dao had been convicted in 2005 of assault occasioning actual bodily harm. The application for review was lodged following amendments to the relevant legislation in 2015, which came into effect after Dao’s conviction. The crux of the dispute was whether the amendments could be applied retrospectively to his case, and if not, whether the denial of clearance was lawful. The case was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issues before the tribunal were whether the 2015 legislative amendments could be applied retroactively to Dao’s situation and, if not, whether the denial of clearance was justified under the existing law at the time of his conviction. The tribunal had to consider the principle of legality, which generally prohibits retroactive application of laws that would alter the legal consequences of past actions. The tribunal also needed to assess whether the Children’s Guardian had the authority to deny clearance based on a conviction that occurred before the legislative amendments.

The tribunal found that the 2015 amendments did not apply retroactively to Dao’s case, as they would alter the legal consequences of his past actions. The amendments introduced new criteria for assessing applications for clearance, which were not in effect at the time of Dao’s conviction. Consequently, the tribunal concluded that the Children’s Guardian’s decision to deny clearance was not in accordance with the law as it stood at the time of Dao’s conviction. The tribunal further determined that, given Dao’s application was solely to engage in unpaid child-related work and considering the nature and recency of his conviction, the risk he posed to children was minimal. Therefore, the tribunal set aside the decision to deny clearance and granted Dao a working with children check clearance in its place.

In light of the tribunal’s decision, it set aside the Children’s Guardian’s refusal to grant Dao a working with children check clearance and substituted it with a decision granting the clearance. The tribunal also made an order prohibiting the publication or broadcast of the names of any persons mentioned in the proceedings, except for expert witnesses and officers of government agencies, to protect their privacy. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 3 April 2017 to refuse to grant the applicant a 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.

(3) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DAO v Children’s Guardian [2017] NSWCATAD 317
Hearing dates:	28 July 2017; 13 September 2017
Date of orders:	01 November 2017
Decision date:	01 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member Dr B Field, General Member
Decision:	(1) The decision of the Children’s Guardian dated 3 April 2017 to refuse to grant the applicant a 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. (3) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Catchwords:	Child protection – Working with children – conviction for assault occasioning actual bodily harm – 2015 amendments not applicable – application lodged only to engage in unpaid child-related work - decision set aside.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	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 FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	DAO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitors: NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00108305
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.