DEF v Children's Guardian

[2017] NSWCATAD 294

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DEF v Children's Guardian [2017] NSWCATAD 294
Hearing dates:	22 August 2017
Date of orders:	06 October 2017
Decision date:	06 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	(1) The application for a stay of the operation of the decision under review is refused.
Catchwords:	ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012 (NSW)-where cancellation of working with children check clearance- where application for a stay of the decision while review application is to be heard later – where paramount concern is protecting children from child abuse – whether to grant an interim stay under section 60, 61, 62 Administrative Decisions Review Act 1997 (NSW) – where the applicant and his partner reside permanently in Queensland – where factors to consider on stay application do not favour granting a stay.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Constitution (Cth) Evidence Act 1995 (NSW) Judiciary Act 1903 (Cth)
Cases Cited:	1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 AHJ v NSW Trustee and Guardian [2011] NSWADT 311 ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 BFX v Children’s Guardian [2014] NSWCATAD 115 BGX v Children's Guardian [2014] NSWCATAD 173 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWCATAD 65 BKV v Children’s Guardian [2015] NSWSC 1602 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 BVT v Office of the Children’s Guardian [2016] NSWSC 1169 BXJ v Children's Guardian [2016] NSWCATAD 11 BYR v Children’s Guardian [2013] NSWADT 310 BZU v Children’s Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 Castlemaine Tooheys Limited v South Australia [1986] HCA 58 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v BQJ [2016] NSWSC 869 CJT v Office of the Children’s Guardian [2016] NSWSC 738 CLD v Children's Guardian [2017] NSWCATAD 134 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 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 CSZ v Children’s Guardian [2017] NSWCATAD 57 CYY v Children’s Guardian [2017] NSWCATAD 155 Elgammal V Director General, Department of Transport [1999] NSWADT 82 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 Re L.S.H.; Ex parte R.T.F. & Anor. (1987) 164 CLR 91; 75 ALR 469 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 New South Wales Bar Association v Stevens [2003] NSWCA 95. Polini v Gray (1879) 12 Ch D 438. R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Re XTWK and Australian Securities and Investments Commission (2007) 46 AAR 350 Roberts v Balancio (1987) 8 NSWLR 436 Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 4 TF v Department of Family & Community Services [2015] NSWSC 694 Tilley v Children’s Guardian [2017] NSWCA 17 Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 YG & GG v Minister for Community Services [2002] NSWCA 247 ZZ v Secretary, Department of Justice [2013] VSC 267
Category:	Procedural and other rulings
Parties:	DEF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Braine (Applicant) C McGorey (Respondent)   Solicitors: NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00247166
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

1. The applicant seeks a stay of the operation of the decision under review made by the Children’s Guardian on 31 July 2017 to cancel his Working with Children Check Clearance. That clearance had previously been granted on 1 February 2014.

2. The applicant is known by the pseudonym “DEF” in these proceedings in order to protect his identity and in accordance with the practice of the NSW Civil and Administrative Tribunal.

3. The application is for administrative review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning the cancellation decision of the Children’s Guardian, and an application for a stay of the operation of the decision under review was filed within time and so no issue is taken by the respondent Children’s Guardian.

4. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter due to the date of the application to the Tribunal and the date of cancellation: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.

5. It is not asserted by the applicant that he was not properly subject to an assessment requirement: section 14 of the Act. It is not asserted that the Children’s Guardian was not permitted to determine that the applicant poses a risk to the safety of children.

6. The applicant is without a Working with Children Clearance now, preventing him from residing in the same house as an authorised carer providing care for children: subsection 10(1) of the Act; there are no applicable exemptions under the Child Protection (Working with Children) Regulation 2013.

7. The applicant requires a Working with Children Check Clearance in order to continue to reside with his wife, who is an authorised carer and cares for children in Queensland. Both the applicant and his wife are residents of Queensland and any relevant children reside in Queensland. The documents prepared for the applicant were witnessed by a relevant person in Queensland. The orders which relate to the care of children were originally made in NSW but have not been transferred to Queensland or registered in another Court according to the information orally provided to the Tribunal.

8. The Court of Appeal determined in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 that the Tribunal doesn’t have jurisdiction to determine disputes under the Anti-Discrimination Act 1977 (NSW) between residents of different States.

9. It was common ground in Burns v Corbett; Gaynor v Burns that the NSW Civil and Administrative Tribunal:

1. was not a “court of the State” for the purposes of Chapter III of the Constitution, and

2. was exercising State judicial power in resolving Mr Burns’ complaints under the Anti-Discrimination Act.

10. The decision of the Court of Appeal in that matter identified that the provisions of section 75 and 76 of the Commonwealth of Australia Constitution Act confer original jurisdiction to the High Court in relation to nine matters including, in section 75(iv), disputes “between States, or between residents of different States, or between a State and a resident of another State.” It was held by the Court of Appeal that this Tribunal which is not a “court of a State”, is unable to exercise judicial power to determine matters between residents of two States because the State law which purports to authorise the Tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act 1903 (Cth) of all such jurisdiction in State courts, and therefore rendered inoperative by virtue of s 109 of the Constitution. Justice Leeming (with whom Chief Justice Bathurst and the President of the Court of Appeal Justice Beazley agreed) stated:

“It is now clear that the effect of s 39 of the Judiciary Act is, by operation of s 109 of the Constitution, to deny any State jurisdiction in State courts when determining any of the matters identified in ss 75 or 76 of the Constitution.”

11. In TF v Department of Family & Community Services [2015] NSWSC 694, Young AJA held that the Children’s Court of New South Wales had no jurisdiction to hear a case in the Children’s Court where the child was in Victoria at the time of commencement of the proceedings because of the jurisdictional limitation in section 4 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

12. Those issues don’t arise in this application for a stay for the following reasons.

13. In this matter the applicant is a resident of Queensland and he filed his application through his lawyer while in Queensland. The clearance which was cancelled, as previously stated, was granted in New South Wales. The applicant simply seeks an administrative review of the decision to cancel that clearance.

14. The Tribunal in this matter is not exercising judicial power but is exercising its administrative review jurisdiction. Section 28 of the Civil and Administrative Tribunal Act 2013 (NSW) provides:

28   Jurisdiction of Tribunal generally

(1)  The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

(2)  In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction:

(a)  the general jurisdiction of the Tribunal,

(b)  the administrative review jurisdiction of the Tribunal,

(c)  the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction),

(d)  the enforcement jurisdiction of the Tribunal.

(3)  Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal.

Note.

Section 35D of the Ombudsman Act 1974 enables the Ombudsman and the President to enter into arrangements with respect to the co-operative exercise of the respective functions of the Ombudsman and the Tribunal (including providing for the referral of matters between them).

15. The administrative review jurisdiction of the Tribunal is referred to in section 30 of the Civil and Administrative Tribunal Act as follows:

30 Administrative review jurisdiction

(1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.

Note. See section 9 of the Administrative Decisions Review Act 1997.

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction:

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.

(3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

Note. See section 7 of the Administrative Decisions Review Act 1997.

(4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.

Note. See section 8 of the Administrative Decisions Review Act 1997.

(5) An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction.

(6) An administrative review application is an application made to the Tribunal for an administrative review decision.

Note. Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.

16. In Tilley v Children’s Guardian [2017] NSWCA 174 at [5] the Court of Appeal identified that the Children’s Guardian makes the decision currently under review and the office created by section 178F of the Children and Young Persons (Care and Protection) Act, the Office of the Children’s Guardian, is a statutory office not a body corporate or a natural person (even though the office holder is a natural person).

17. In Re L.S.H.; Ex parte R.T.F. & Anor. (1987) 164 CLR 91; 75 ALR 469, the High Court held that the Family Court (defined as a superior court of record) has the authority to grant an interlocutory injunction in such terms as may be necessary to preserve the status quo pending determination of its jurisdiction. The injunction in that case, however, was not sought pending a determination of a jurisdictional issue. It was granted by way of interim relief in a case in which final relief was sought in similar terms and therefore in those circumstances beyond power.

18. The Tribunal raised the issue of jurisdiction of the Tribunal in the circumstances of this matter with counsel for the parties on 22 August 2017 but it was not a matter upon which submissions were then made. The application for interim relief proceeded on the basis that the Tribunal has jurisdiction to hear it. It will be determined also on that basis.

19. This is an application relying upon section 60 of the Administrative Decisions Review Act 1997 (NSW) and the applicant is now seeking a stay of the operation of the decision made by the Children’s Guardian. This application is clearly in the administrative review jurisdiction of the Tribunal.

20. The provisions of section 60 of the Administrative Decisions Review Act are as follows:

60 Operation and implementation of decisions pending applications for administrative review

(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

21. In other words, the application for review does not act as a stay of the decision under review. It is to be observed that the discretionary power is restricted by the operation of section 61 of the Administrative Decisions Review Act and that restriction has been satisfied in this matter, because the "administrator who made the decision" is represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review.

22. The application for stay was heard by the Tribunal on 22 August 2017. The applicant submits that conditions can be attached to the order granting a stay: section 62 Administrative Decisions Review Act;Elgammal v Director General, Department of Transport [1999] NSWADT 82.

23. The issue the Tribunal is to ultimately decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. That decision in this matter will not be made until the final hearing of the application.

24. Provided that the matters which must be considered in section 30 of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

25. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

26. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children’s Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.

27. In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.

21. The Tribunal may not lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. A conditional grant of a clearance for the purpose of allowing the applicant to comply with conditions and reside with his wife who is caring for children is not permitted by the legislation.

22. The Tribunal has previously considered the grant of a stay in section 27 proceedings in BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111, but in different factual circumstances and accordingly these reasons draw upon the reasons in that matter to a significant degree, having regard and assessing the particular facts and more recent context of this matter. In BXJ v Children's Guardian [2016] NSWCATAD 11 (BXJ) the Tribunal considered whether to extend a stay which had been previously granted by the Principal Member, on conditions, to the date of final hearing. It was stated by the Tribunal in that matter BXJ, relying upon reasoning which is also set out in these reasons, that:

“[22] It is thus considered doubtful that the Tribunal, in the circumstances of the application before it brought by BXJ, could lawfully attach conditions which would be permitted by the legislation effectively to the grant of an interim clearance as proposed, if the Tribunal decided that it would be appropriate or desirable to grant a stay on conditions.”

30. An order prohibiting publication of identifying information has previously been made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW). That restriction is recorded at the title page of these reasons.

The evidence relied upon in the interim hearing

31. The Tribunal received evidence contained in the following documents:

1. Affidavit of the applicant filed on 14 August 2017: Exhibit 1.

2. Email from the Crown Solicitor’s Office dated 3 August 2017 to Mr Braine: Exhibit 2.

3. Submissions of the applicant by Mr Braine: Exhibit 3;

4. Letter from the NSW Ombudsman to the Children’s Guardian dated 27 March 2017: Exhibit 4;

5. Reportable Conduct Unit Investigation Report dated 7 January 2016: Exhibit 5.

32. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil onus of proof which is the balance of probabilities. Because of the limited nature of the interim application for a stay the Tribunal will not be able to make a concluded finding of fact.

33. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

34. This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.

35. Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

36. The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted:

“[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36].

[72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.

…

[74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

37. The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis”) at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

38. The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button’s decision and orders in Bronze Wing.

39. The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil onus to determining a factual matter: CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].

40. The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

41. The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

42. The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

43. As previously stated this is an interim application so the Tribunal may not be able to make any findings on contested issues. The Tribunal will consider whether there are any agreed facts and make some prediction as to the likely findings or at least some consideration of the types of issues to be determined at the final hearing.

44. Because the applicant is seeking a stay there are some general principles which apply to that type of application which are set out later in these reasons. In essence, the applicant states to the Tribunal that it is unfair that he is unable to live with his wife who is caring for children if he does not have a clearance.

Legislative Provisions

45. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.

46. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

"Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."

47. There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence.

Maximum penalty: 200 penalty units.”

48. The objects of the Act are set out in section 3 which provides:

"Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances."

49. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."

50. "Conviction" as defined in section 5 (1) of the Act “includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.”

51. Pursuant to section 15 of the Act the Children’s Guardian may conduct a risk assessment of the applicant. The section relevantly provides as follows:

“15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder....”

52. The applicant’s clearance was cancelled on 31 July 2017 pursuant to section 23 of the Act which provides:

23 Cancellation of clearances

(1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children.

(2) The Children's Guardian must notify the holder of the clearance in writing of the Children's Guardian's decision to cancel the clearance.

(3) Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.

(4) The Children's Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.

The holder of a clearance may also be made subject to an interim bar (see section 17).

53. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.

54. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

55. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit, to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

56. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

57. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

58. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

59. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

53. The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

61. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33]. It is useful to set out the reasoning behind the Tribunal’s determination in this decision.

62. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.

63. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.

64. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.

65. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.

66. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

67. In the following paragraph, the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

68. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.

69. In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states:

"Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."

70. If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.

71. It is the Tribunal’s assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

The Issue

72. The applicant seeks that the operation of the decision of the Children’s Guardian to cancel his Working with Children Check Clearance should be delayed until after a further hearing. The Tribunal has to determine whether it is desirable to do so after taking into account:

1. the interests of any persons who may be affected by the determination of the application, and

2. any submission made by or on behalf of the administrator who made the decision to which the application relates, and

3. the public interest.

73. Additionally, it is accepted that conditions may usually be imposed while granting a stay for a specified period of time, or if no period is specified until the decision of the Tribunal on the application takes effect: section 62 Administrative Decisions Review Act; Elgammal v Director General, Department of Transport [1999] NSWADT 82. That is only possible if the relevant regulatory legislative provisions envisage some conditions may be imposed.

74. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302, the Court of Appeal (Basten JA, Campbell JA, and Handley AJA), Basten JA who was in the plurality stated at [21] in relation to section 60 Administrative Decisions Review Act:

A stay is commonly granted to preserve the status quo or the subject matter of an appeal (or review), pending a final determination of the appeal. It is granted in the course of an appeal (or review) as a step in the process of determining the subject matter of the appeal (or review). Interlocutory orders of a kind which might not form part of the final determination are regularly made in the course of proceedings, including decisions with respect to the admission or rejection of evidence, the granting of adjournments, and numerous other matters. The material upon which the Commissioner based the decision under review might well be relevant to an interlocutory decision sought under s 60. The purpose of s 29(3) is to maintain the non-disclosure of the existence and content of identified information. To limit the purposes for which the protection was available, so as to exclude some interlocutory steps, would tend to subvert the purpose of the provision.

75. Generally, in civil litigation, a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: Polini v Gray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances whether on conditions or otherwise.

76. It has also been said that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83].

77. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104].

78. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]:

"[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:

"In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only."

[104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight."

79. As previously referred to, the primary issue before the Tribunal in this application when it comes to the final hearing is what the correct and preferable decision is, having regard to the material before the Tribunal in relation to the cancellation of a Working with Children Check Clearance previously granted to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

80. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

81. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

82. In 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 at [5] the Supreme Court (per White J as he then was) emphasised that it is not Court’s task “to conduct a preliminary hearing”. In determining whether there is “a serious question to be tried” when considering an interlocutory injunction, it is to be assumed that any conflict in the evidence “would be resolved in the plaintiff’s favour.” The decision of Deputy President Hennessy in Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [34] applies that traditional formulation to a consideration of a stay pursuant to section 60 of the Administrative Decisions Review Act. The Deputy President also referred at [31] to [33] to the consideration of the prospects of the success or the merits of the review application as follows:

[31] The corresponding provision in the Administrative Appeals Tribunal Act 1975 (Cth), section 41, is in similar terms but does not list the public interest as a mandatory consideration. Nevertheless, the prospects of success or the merits of the applicant’s case on review have been regarded as relevant: Re XTWK and Australian Securities and Investments Commission (2007) 46 AAR 350 at 354.

[32] In AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] the former Administrative Decisions Tribunal held that the phrase "secure the effectiveness of the determination" is another way of saying that there needs to be irreparable loss or harm to the applicant before consideration will be given to making an interim order. The Tribunal went on to say-

[15] Section 60 is to be read keeping in mind the common law principles in relation to the exercise of interlocutory injunctions. In Castlemaine Tooheys Limited v South Australia [1986] HCA 58, Acting Chief Justice Mason said at paragraph 11:

"The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction".

[33] In a practical sense the onus is on the applicant to make out a case that it is appropriate for the Tribunal to make such an order: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9], Wright J, President citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694.

Considerations and the Evidence

83. On an application under section 28 or 29 of the Act the Tribunal may stay the operation of a determination of the Children’s Guardian under the Act pending determination of the matter: section 30 (2) of the Act. However a decision the subject of a section 27 review can only be stayed by reference to section 60 of the Administrative Decisions Review Act. The provisions of section 30 (1) of the Act “must” be applied in “determining an application” under Part 4 of the Act. This stay application is not determining or bringing to an end or concluding the application for review. However, in order to consider whether it is desirable to stay that decision, it is relevant to consider, even if briefly, the matters in section 30(1) of the Act. This is not a preliminary hearing. Such a course is consistent with the prior extract from AVS Group of Companies Pty Ltd v Commissioner of Police.

84. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which is the application for review under section 27. The Children's Guardian in determining the risk assessment "may consider" matters set out in sub sections 15 (4) and 15 (4A) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) and 30(1A) of the Act. The Children’s Guardian has already performed an assessment pursuant to section 15 of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.

85. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.

86. Section 15 of the Act relevantly provides as follows:

“…(4) In making an assessment, the Children's Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

(b) the period of time since those matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person's present age,

(h) the seriousness of the person's total criminal record and the conduct of the person since the matters occurred,

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

(j) any information given in, or in relation to, the application,

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

(k) any other matters that the Children's Guardian considers necessary.

(4A) The Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children's Guardian is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and

(b) it is in the public interest to make the determination.

87. Section 30 of the Act relevantly provides as follows:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person's present age,

(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

(k) any other matters that the Children's Guardian considers necessary.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

88. Each of the following subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under the subheadings reciting the required considerations under the Act.

89. Also, as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.

90. The considerations which are required to be taken into account are those set out in section 60 (3) of the Administrative Decisions Review Act. Accordingly, it is the Tribunal’s determination that the Tribunal is required to consider those matters set out in section 30 (1) of the Act in order to assess whether it is desirable to make an order under section 60 of the Administrative Decisions Review Act.

91. The Tribunal is cautious in its consideration of the evidence and will not reach a concluded view until after hearing further evidence, including cross examination and submissions in the final hearing.

The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar

92. The applicant is not a disqualified person.

93. The purpose of the risk assessment is protective of children and not punitive of the applicant, as earlier stated. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The legislature has included this factor as a matter relevant to the assessment of risk.

94. The Ombudsman referred to the Reportable Conduct Unit Investigation Report in Exhibit 4. The Ombudsman’s office formed the view that the determination that the applicant physically abused a male child in his and his wife’s care was not unreasonable. In other words, it was open to find that the applicant had physically assaulted the child. However, it was also the opinion of the Ombudsman that several aspects of the relevant incident fell below the threshold of a serious physical assault. The police have conducted a review of the allegations made against the applicant and decided not to proceed with charges. This fact did not change the assessment of the Ombudsman’s office.

95. The reportable conduct unit was investigating allegations primarily concerning the applicant’s wife. That is because she is the authorised carer, or was at the time that the children were in her care.

96. The reportable conduct unit also found that the applicant smashed the female child dollhouse on the floor and when the child swore at him he slapped the child in the care of the applicant and his wife. The applicant slapped her in the face. This apparently left a bruise which was described as a “black eye”.

97. The Reportable Conduct Unit Report did not consider that there was a serious physical assault. These are, notwithstanding that finding, matters which significantly impact upon the safety of children in the care of the applicant and which led to the cancellation of the working with children check clearance. The Children’s Guardian accurately submitted however that the incidents were not at the high end of seriousness.

The period of time since those matters occurred and the conduct of the person since they occurred

98. The matters referred to in the Reportable Conduct Unit Investigation Report occurred three years ago.

99. Since that time there has been an assessment report by a psychologist who assessed that the female child is securely attached to the applicant’s wife and should not be removed from the placement. Additionally, it is assessed by the psychologist that the female child would not be at risk if she remained in the household of the applicant, but would suffer serious psychological harm if she was separated from the applicant’s family.

100. An assessment has also been performed by Assessments Australia in relation to the applicant’s wife. That assessment did not specifically assess the applicant as a carer or household member for the Carer Review Assessment. That assessment report is annexed to the affidavit of the applicant Exhibit 1.

101. The Tribunal was informed that there will be an additional assessment.

102. It also appears that there is a Children’s Court application in which a guardianship order was proposed by the applicant’s wife for the female child to remain in her care. The Minister does not seek any aspects of parental responsibility for the female child according to Exhibit 2.

The age of the person at the time the offences or matters occurred

103. The applicant was aged 47 at the time of the incidents referred to in the Reportable Conduct Unit Investigation Report.

104. The Ombudsman referred to the Reportable Conduct Unit Investigation Report in Exhibit 4. The Ombudsman’s office formed the view that the determination that the applicant physically abused a male child in his and his wife’s care was not unreasonable. In other words, it was open to find that the applicant had physically assaulted the child. However, it was also the opinion of the Ombudsman that several aspects of the relevant incident fell below the threshold of a serious physical assault. The police have conducted a review of the allegations made against the applicant and decided not to proceed with charges. This fact did not change the assessment of the Ombudsman’s office.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

105. The victim of the assault as found by the Reportable Conduct Unit in Exhibit 4 was aged 12.

106. The female child was aged 13 at that time.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

107. The difference in age between the applicant and the victim of the assault was 35 – 36 years.

Whether the person knew, or could reasonably have known, that the victim was a child

108. The applicant knew that the victim of the assault was a child.

The person’s present age

109. The applicant is currently aged 50.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

110. The applicant does not appear to have a criminal history. The proceedings are at a very early stage and there is no police documentation available to the Tribunal.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

111. The Tribunal has to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant independent of any expert opinion.

112. On the current state of evidence, it is not possible to identify whether there is either a risk or an absence of risk of repetition of physical abuse of children.

Any information given by the applicant in, or in relation to, the application

113. The applicant has provided information and will provide further information in relation to the application for review of the decision.

Any other matters that the Children’s Guardian considers necessary

114. The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary having regard to the fact that this is an interim application.

115. The respondent’s prior decision was that a real and appreciable risk to the safety of children is present. That is why the applicant’s clearance was cancelled.

The interests of any persons who may be affected by the determination of the application

116. The grant of a clearance or the stay of its cancellation is important to the applicant and his wife. The applicant and his wife will be relieved of a great inconvenience and burden if he is able to return to his home and not be considered to place the care of the children who may be in his wife’s care at risk of harm by reason of the absence of a clearance.

117. It is noted that the applicant vacated the home at the time of the investigations by the Reportable Conduct Unit.

Any submission made by or on behalf of the administrator who made the decision to which the application relates

118. The Children’s Guardian made submissions opposing the order sought.

119. The Children’s Guardian identified that there is a real question raised in relation to the safety of children with the applicant. It is also noted that the applicant does not require the clearance for his own employment. It was also submitted that the applicant can visit and maintain a relationship pending a final determination if the stay is not granted. Additionally, it was submitted that there would be no way to police a conditional grant of a clearance particularly because of the distance and interstate location.

The public interest

120. When assessing the public interest it is relevant to have regard to the nature and seriousness of the allegations made against the applicant. Those allegations clearly relate to the potential of the applicant to be a risk to the safety of children. While at the lower end of the scale the incidents are serious. The interests of the public and children generally may be prejudiced if the applicant is permitted to work with children and it is ultimately found that he does pose a risk to the safety of children.

121. The Act is designed to protect the public and therefore the public interest is entitled to significant weight. It is in the public interest for persons who are considered to be a risk to the safety of children to be prevented from working with children. However, the public interest takes into account other matters. A significant factor in this matter is the presumed distress which has been caused by the departure of the applicant from his own family home.

122. The public interest has been considered by the Tribunal in a different context, in relation to the amended version of section 30 of the Act, but that consideration is of interest in the context of the public interest referred to in section 60(3)(c) of the Administrative Decisions Review Act and for the purpose of the stay application. In CLD v Children's Guardian [2017] NSWCATAD 134 the Tribunal referred to and adopted the discussion of the public interest in the decision of the Victorian Court of Appeal in Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 at [24]-[37] where that court referred to the following matters:

[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[[2009] HCA 51]

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[Citing O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); see also Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, [31]-[32] (French CJ), [69] (Gummow, Heydon, Crennan, Kiefel and Bell JJ); Osland v Secretary Department of Justice No 2 [2010] HCA 24; (2010) 241 CLR 320, [13].]

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’.[ Act, s 1(1).] The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.[ Ibid.]

[26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.

[27] Whilst it might be possible to demonstrate that the Tribunal erred in law if it took into account an extraneous factor, it will necessarily be difficult to demonstrate in this context that it misdirected itself in respect of the public interest by failing to have regard to factors which are not imperatively relevant to the achievement of the purpose of the Act.

[28] In particular, where the Tribunal, as in the present case, finds that it is positively satisfied that the giving of an assessment notice is in the public interest, it will be difficult to disturb that conclusion because:

(a) a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest;

(b) the public interest includes matters of such potential breadth that it requires a situational definition by the decision maker having regard to the circumstances of the case;

(c) the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification;

(d) Parliament vested in the Tribunal - not the Secretary nor the Minister nor this Court – the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case.

[29] In our view, for reasons we shall come to, a fair reading of the Tribunal’s reasons shows that in neither case did the Tribunal improperly restrict in any way the range of matters potentially relevant to determining what was in the public interest.

[30] Thus, it is not sufficient for the Secretary to hypothesise a factor which might be potentially relevant to the Tribunal’s decision and then show that the Tribunal did not consider it. The Secretary must demonstrate that the Tribunal was bound to have regard to the factor identified by her and that it failed to do so.[ Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-42, 55; Foster v Minister for Customs [2000] HCA 38; (2000) 200 CLR 442, 452 [22]-[23].]

[31] In the present cases, it cannot be said that the factor of ‘public confidence in the assessment of persons as suitable for child-related work’ [Outline of submissions on behalf of the Secretary in the case of LMB, [13]] necessarily required consideration once it was concluded that the applicants did not objectively pose an unjustifiable risk to the safety of children.

[32] First, the perception, as distinct from the fact, of risk is not a factor specifically identified as relevant by the Act, nor can it be said to be imperatively relevant to the achievement of the purpose of the Act.

[33] Secondly, the fact that the Act gives the Tribunal a discretion with respect to the giving of notices of assessment to offenders of the class in question counts strongly against the conclusion that mere categorisation by reference to the offence in issue (or any other negative matter able to be taken into account under s 26(2)) is a proper basis for concluding that the public interest requires refusal.

[34] Thirdly, it is implicit in the Secretary’s submission that the Tribunal may conclude that it would be objectively just to give a notice having regard to the circumstances of an applicant, but not in the public interest to do so because of the probable popular perception of an objectively just decision. It would, in our view, ordinarily require a clear mandate for the Tribunal to regard itself as bound to proceed on the basis of its view of probable public perceptions rather than its view of the objective justice of the situation. We will expand on this matter in a moment.

[35] Fourthly, there was no evidence before the Tribunal in either of the present cases of public perceptions of the working with children check system nor any evidence of the likely impact of the giving of the notices in question upon public perceptions. The factor put forward by the Secretary is essentially one of no more than a speculative risk of adverse public perceptions.

[36] Fifthly, insofar as it was hypothesised that the Tribunal should have regard to likely public perceptions of the exercise of its discretion without any public knowledge of the facts of the case or the reasons of the Tribunal, we do not see how such a consideration could rationally be given weight.[ Cf Director of Public Transport v XJF [2011] VSCA 302, [58]-[59] (Maxwell P with whom Mandie and Harper JJA agreed).] Such an approach would require the Tribunal to effectively disregard its own view of the merits of the case upon the evidence for fear of uninformed public sentiment.

[37] Sixthly, in any event, why should the Tribunal be required to assume that the ultimate public reaction to a carefully reasoned, just and objectively sound decision to grant an assessment notice would or might be a negative or critical reaction? On the contrary, it might well be considered that, at least in the long term, public confidence in the system is better served by rational decision making based on objective evidence rather than by avoiding such decision-making out of fear that the public will think ill of it. This is the view which underpins the rule of law generally in our society and we can see no basis for concluding that such an approach would not be open to the Tribunal. Why should the Tribunal effectively ignore the point made by the Attorney in the second reading speech that, because a negative notice will place significant restrictions on a person’s employment and community involvement, a ‘full range of appeal rights’ is provided in order to ‘ensure’ that no-one is unfairly treated.

123. This decision was referred to in ZZ v Secretary, Department of Justice [2013] VSC 267 where it was also observed by Bell J at [202]:

[202] While decisions of the tribunal have correctly emphasised that the main purpose of the Working with Children Act is the protection of children from harm, they have also acknowledged the relevance and importance of rehabilitating offenders, their right to work and other similar considerations.[See eg BGD v Secretary, Department of Justice [2010] VCAT 50 (8 January 2010) [62] (Judge Harbison, Vice-President) (‘BGD’); FC v Director of Public Transport [2010] VCAT 437 (6 April 2010) [27] (Macnamara DP) (under the Transport (Compliance and Miscellaneous) Amendment Act) (‘FC’); WSO v Secretary, Department of Justice [2010] VCAT 1522 (16 July 2010) [55] (Judge Hampel, Vice-President) (‘WSO).] So, in MH,[[2008] VCAT 1514 (22 July 2008)] her Honour Judge Harbison said the Working with Children Act did not prevent all persons with a serious criminal record from ever working with children again. Rather:

It is designed so that an informed assessment can be made in every individual case of the risk of harm to children arising out of his or her past behaviour. It places a heavy burden on the decision maker, to make an assessment as to what is likely to happen in the future, based on what is known to have happened in the past. The assessment must be rigorously made, given the aim of the legislation, which is the protection of very vulnerable children from sexual harm or violence.[Ibid [35]]

124. The public interest in this matter is better served by maintaining the current status quo. This is because the matters which led to the cancellation of the clearance at a preliminary examination unarguably involve abuse of children. The reasons, justifications and circumstances of those events can be the subject of further evidence and submissions on the review application. These observations and findings are not however binding on the Tribunal’s later consideration of the review application.

CONSIDERATION

125. The Act is designed to be protective and the Minister’s second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk.

126. While there is no presumption that the applicant poses a risk to the safety of children, there has been a determination by the Children’s Guardian pursuant to section 15 of the Act risk assessment that the applicant does pose a risk to the safety of children. The Tribunal is to later determine whether that is the correct and preferable decision.

127. The factors which have to be taken into account pursuant to section 30 (1) of the Act have been identified earlier in these reasons. It can be seen from those considerations that further evidence will be required to determine whether or not the correct and preferable decision has been made.

128. The assessment of the Tribunal based upon the previously identified sources of evidence is that it is not desirable to grant a stay in order to secure the effectiveness of the determination of the application taking into account the interests of the applicant and the public interest.

129. The Tribunal will be required to make an assessment based on further and more complete evidence assuming that the jurisdiction of the Tribunal is able to be exercised.

130. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

131. There is a serious question to be tried but the applicant has not made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the hearing of the review the applicant will be held entitled to the relief he seeks. Additionally there is no persuasive evidence that he will suffer irreparable injury unless a stay is granted. Thirdly, it is not established by the evidence before the Tribunal on this application that the balance of convenience favours the granting of a stay.

132. The overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances. Given the limited evidence before the Tribunal at this point in time it is not in the public interest or in the interests of justice in those circumstances to reach a summary conclusion which may expose children to real and appreciable risk of harm which cannot be later remedied.

CONCLUSION

133. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act. The applicant is also not presumed to be safe with children and it is a matter of evidence to determine whether that is the case.

134. If the applicant is granted a clearance or a stay of the decision of the Children’s Guardian he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. It is clear from the second reading speech that a person is either granted a clearance to work with children, or is not. There is no mechanism for the Tribunal to monitor any conditions which might be imposed. The conditions proposed by the applicant are not able to be enforced or monitored by the Children’s Guardian. The applicant will reside outside the State of New South Wales.

135. The decision from which the applicant seeks a review determined that the applicant poses a risk to the safety of children. The purpose of the Act is protective and not punitive.

136. Those matters may be the subject of further evidence and the ultimate decision of the Tribunal may be contrary to those opinions. However, on an interim basis where the factors to be considered are not fully expanded upon it is not possible to predict the eventual outcome as likely to favour the applicant. The application is therefore refused.

137. It is raised at an earlier point in these reasons that the Tribunal may not have jurisdiction to hear this application: see Burns v Corbett; Gaynor v Burns [2017] NSWCA 3. The Tribunal determines that it is exercising its administrative review jurisdiction and so those constraints do not apply to this matter.

138. The interim application has been considered on its merits and is refused so there is clearly no prejudice to either party flowing from that potential complication in relation to jurisdiction.

Order

The order of the Tribunal is that:

1. The application for a stay of the operation of the decision under review is refused.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 October 2017