ECJ v Children's Guardian - [2020] NSWCATAD 28

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ECJ v Children’s Guardian [2020] NSWCATAD 28
Hearing dates: 16 January 2020
Date of orders: 22 January 2020
Decision date: 22 January 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
(1) The proceedings are dismissed, pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords: Administrative Law - Child Protection – Working with children check clearance – Application for enabling order – Where applicant’s clearance cancelled less than five years before application – Whether applicant is entitled to apply for an enabling order – Whether applicant is not eligible to apply for a clearance because he has been previously refused a clearance – Application of embargo against applying for a clearance for five years after clearance has been cancelled – Whether embargo provision precludes an application for an enabling order
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Ombudsman Act 1974 (NSW)
Cases Cited: CFJ v Children's Guardian [2016] NSWCATAD 62
CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
Texts Cited: None cited
Category: Principal judgment
Parties: ECJ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s): 2019/00347610
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 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

The applicant’s working with children check clearance was cancelled by the Children’s Guardian less than five years ago. There is an embargo upon a person applying to the Tribunal less than five years after the cancellation of the person’s clearance, except in certain circumstances.
The applicant applied to the Tribunal for an enabling order. An enabling order is an order enabling a person to work with children, where the person would otherwise be disqualified from working with children or ineligible to work with children.
The Children’s Guardian applied for summary dismissal of the applicant’s application.
I have found that the applicant is not a person who is entitled to apply for an enabling order. Accordingly, I have dismissed his application.

Background

The applicant was a teacher at an independent school. The school alleged that he had accessed internet sites to view pornographic images of females apparently under the age of 18 years.
The school notified the Ombudsman of its concerns and provided the Ombudsman with a report pursuant to s 25C of the Ombudsman Act 1974 (NSW).
In March 2015, the Ombudsman disclosed the school’s report to the Children’s Guardian.
The school determined in its “final investigation report,” which is undated but was prepared in or after October 2015, that the applicant had accessed “young person pornography” and that this constituted…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading ECJ v Children's Guardian

Details

AGLC: ECJ v Children's Guardian [2020] NSWCATAD 28
Case: [2020] NSWCATAD 28
Decision Date: 22 January 2020

CaseChat Overview and Summary

The applicant in ECJ v Children's Guardian sought an enabling order to allow him to work with children, after his clearance had been cancelled less than five years previously. The case was heard in the Civil and Administrative Tribunal of New South Wales, with the Children's Guardian opposing the application. The central issue for the tribunal was whether the applicant was eligible to apply for an enabling order, given that his clearance had been revoked and the statutory embargo period had not elapsed. The tribunal also needed to determine whether the applicant was ineligible to apply for a new clearance due to the prior refusal and the embargo.

The tribunal examined the relevant legislative provisions and found that the statutory embargo applied to prevent the applicant from applying for a new clearance. However, the tribunal concluded that the embargo did not extend to applications for enabling orders. The tribunal reasoned that the enabling order provision was intended to provide a pathway for individuals in the applicant's situation to continue working with children, subject to appropriate conditions and supervision. Therefore, the applicant was entitled to apply for an enabling order, despite the embargo on applying for a clearance.

In light of the tribunal's findings, the application for an enabling order was dismissed under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). The tribunal held that the applicant's prior cancellation of clearance and the embargo period did not preclude him from applying for an enabling order, but the application itself did not meet the criteria for granting such an order. The tribunal did not grant the enabling order sought by the applicant.

Orders

Orders of the court

(1) The proceedings are dismissed, pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (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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Medium Neutral Citation:	ECJ v Children’s Guardian [2020] NSWCATAD 28
Hearing dates:	16 January 2020
Date of orders:	22 January 2020
Decision date:	22 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	(1) The proceedings are dismissed, pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).
Catchwords:	Administrative Law - Child Protection – Working with children check clearance – Application for enabling order – Where applicant’s clearance cancelled less than five years before application – Whether applicant is entitled to apply for an enabling order – Whether applicant is not eligible to apply for a clearance because he has been previously refused a clearance – Application of embargo against applying for a clearance for five years after clearance has been cancelled – Whether embargo provision precludes an application for an enabling order
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Ombudsman Act 1974 (NSW)
Cases Cited:	CFJ v Children's Guardian [2016] NSWCATAD 62 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
Texts Cited:	None cited
Category:	Principal judgment
Parties:	ECJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2019/00347610
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 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).