DOP v Children's Guardian

Case [2019] NSWCATAD 23


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DOP v Children’s Guardian [2019] NSWCATAD 23
Hearing dates: 18 December 2018
Date of orders: 06 February 2019
Decision date: 06 February 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: C A Mulvey, Senior Member
R Royer, General Member
Decision:

(1) It is declared the applicant is not a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) for the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s474.27A of the Criminal Code (Cth) entered on 30 April 2015 at the Magistrates Court at Latrobe Valley in Victoria.
(2) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed on 31 August 2018 is granted.
(3) The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 26(6) of Child Protection (Working with Children) Act 2012 (NSW).

Catchwords: ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s 474.27A of the Criminal Code (Cth) – enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Offenders Registration) Act 2000 (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)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
BYR v Children’s Guardian [2013] NSWADT 310
Children’s Guardian v BQJ [2016] NSWSC 869
CHB v Children’s Guardian [2016] NSWCATAD 214
CJT v Office of the Children’s Guardian [2016] NSWSC 738
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
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DHB v Children’s Guardian [2018] NSWCATAD 123
M v M [1988] HCA 68; 166 CLR 69
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
R v Commission for Children and Young People [2002] NSWIRComm 101
R v War Pensions Entitlement Appeal Tribunal; ex…

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DOP v Children's Guardian [2019] NSWCATAD 23
Case
[2019] NSWCATAD 23
Decision Date

CaseChat Overview and Summary

The case of DOP v Children's Guardian involved a legal challenge by an applicant seeking a declaration that they were not a Disqualified Person under the Child Protection (Working with Children) Act 2012 (NSW). The applicant was seeking an enabling order and a working with children check clearance following a conviction for using a carriage service to transmit an indecent communication to a person under the age of 16 years. The applicant had been convicted of this offence in 2015 and had applied for a working with children check clearance in 2018. The Children’s Guardian had refused to grant the clearance, leading to the applicant's application for judicial review.

The legal issues before the court included whether the applicant was a Disqualified Person under the relevant statute and whether the risk of harm to children was real and appreciable. The court was also required to consider whether the applicant should be granted an enabling order under the Act and whether the applicant should be granted a working with children check clearance. The applicant argued that the risk to children was not real and appreciable and that a reasonable person would allow unsupervised access to their own child in the context of child-related work.

The court found that the applicant was not a Disqualified Person and that the risk to children was not real and appreciable. The court held that a reasonable person would allow unsupervised access to their own child in the context of child-related work, and that the applicant's conviction did not necessarily mean that they posed a risk to children. The court also found that the applicant had satisfied the onus of discharge under the relevant statute and that an enabling order should be granted. The court ordered that the applicant was not a Disqualified Person, that an enabling order be granted, and that the Children’s Guardian grant a working with children check clearance to the applicant.

Orders

Orders of the court

(1) It is declared the applicant is not a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) for the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s474.27A of the Criminal Code (Cth) entered on 30 April 2015 at the Magistrates Court at Latrobe Valley in Victoria.

(2) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed on 31 August 2018 is granted.

(3) The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 26(6) of Child Protection (Working with Children) Act 2012 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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