1) The decision of the Children’s Guardian on 1 June 2018 to cancel the Working with Children Check Clearance under section 23 of the Child Protection (Working with Children) Act 2012 is confirmed. 2) 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:
ADMINISTRATIVE LAW-review under section 27(2) Child Protection (Working with Children) Act 2012- cancellation of Working With Children Check Clearance under section 23 - where paramount concern is protecting children from child abuse - onus of proof in a review under section 27- whether finding on the balance of probabilities is able to be made that the alleged events occurred - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children.
[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
AGLC
DMA v Children's Guardian [2019] NSWCATAD 63
Case
[2019] NSWCATAD 63
Decision Date
CaseChat Overview and Summary
The case of DMA v Children's Guardian was heard in the Civil and Administrative Tribunal of New South Wales, where the primary issue was the cancellation of the applicant's Working with Children Check Clearance. The Children’s Guardian had decided to cancel the clearance under section 23 of the Child Protection (Working with Children) Act 2012, a decision which the applicant sought to challenge. The matter required the tribunal to determine the appropriate standard of proof in a review under section 27 of the Act, specifically whether the tribunal could find on the balance of probabilities that the alleged events occurred and whether there was an unacceptable risk of harm posed by the applicant to the safety of children.
The tribunal examined the legislative framework and found that the paramount consideration in making a decision under the Act was the protection of children from abuse. It was not necessary to establish criminal guilt, but rather to determine whether the applicant posed an unacceptable risk of harm to children. The tribunal considered the evidence presented and concluded that the Children’s Guardian had acted within their powers and followed the correct process in cancelling the clearance. The tribunal held that the onus was on the applicant to prove that the cancellation decision was unreasonable, which the applicant failed to do. The tribunal was satisfied that the Guardian’s findings were based on evidence that was open to the Guardian to make and that the Guardian had the necessary information to conclude that there was an unacceptable risk of harm.
The tribunal confirmed the decision of the Children’s Guardian to cancel the applicant’s Working with Children Check Clearance. The tribunal also granted 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. This order was made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 to protect the privacy of those involved. The tribunal's decision underscored the importance of the protection of children and the need to maintain stringent standards in the issuance and cancellation of Working with Children Check Clearances.
Orders
Orders of the court
1) The decision of the Children’s Guardian on 1 June 2018 to cancel the Working with Children Check Clearance under section 23 of the Child Protection (Working with Children) Act 2012 is confirmed.
2) 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.