1) The application for a stay or interim order is refused and dismissed.
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 (NSW). 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 Child Protection (Working with Children) Act 2012 (NSW)-where refusal 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 charge of an act of indecency towards a person above the age of 16 years contrary to section 66N(2) of the Crimes Act 1900 (NSW) and acquittal – assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children – where stay refused.
[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
DOL v Children's Guardian [2018] NSWCATAD 239
Case
[2018] NSWCATAD 239
Decision Date
CaseChat Overview and Summary
The case of DOL v Children's Guardian involves the Department of Communities and Justice (DOL) and the Children's Guardian, and revolves around the refusal of a working with children check clearance. The DOL, acting under the Child Protection (Working with Children) Act 2012, declined the clearance, leading to an application for a stay of the decision while the review application was heard. The primary concern was the protection of children from abuse. The applicant sought an interim stay under the Administrative Decisions Review Act 1997, arguing that he was not a risk to children's safety, despite being charged with an act of indecency towards a person over 16 years of age, a charge from which he was acquitted.
The court had to decide whether the applicant had demonstrated that he was not a risk to the safety of children. The applicant argued that his acquittal on the charge should negate the risk assessment made by the DOL. The court examined the criteria under which the DOL made its decision, including the paramount concern of child protection and the need for a thorough risk assessment. The applicant's acquittal was considered, but the court also weighed the potential risks and the DOL's assessment process. The court had to balance the applicant's right to work with children against the paramount need to protect children from potential harm.
The court refused to grant the interim stay. It held that the DOL's decision was based on a comprehensive risk assessment, which considered various factors beyond the applicant's acquittal. The court found that the applicant had not proven that he was not a risk to the safety of children. The paramount concern of child protection and the need for a thorough assessment outweighed the applicant's right to work with children at that time. The court also noted that the decision to refuse clearance was not arbitrary or irrational, and it was reasonable in the circumstances.
The final orders of the court were that the application for a stay or interim order was refused and dismissed. Additionally, the court prohibited the publication or broadcast of the names of any persons mentioned in the proceedings, except for expert witnesses and officers of government agencies, to protect their privacy and to prevent any potential harm to the individuals involved.
Orders
Orders of the court
1) The application for a stay or interim order is refused and dismissed.
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 (NSW). 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.