Efy v Children's Guardian

[2020] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EFY v Children’s Guardian [2020] NSWCATAD 178

Hearing dates:

On the papers

Date of orders:

9 July 2020

Decision date:

09 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Connor, Senior Member
S Davison, General Member

Decision:

The proceedings are dismissed pursuant to section 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:

ADMINISTRATIVE LAW - Child Protection - Cancellation of Working with Children Check clearance - Whether applicant is entitled to seek further review - Whether refusal of Children’s Guardian to allow early application constitutes refusal of clearance – Application of section 66(1) of Administrative Decisions Review Act 1997 on embargo provision

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 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

ECJ v Children’s Guardian [2020] NSWCATAD 28

Category:

Principal judgment

Parties:

EFY (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P Singleton (Respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00078317

Publication restriction:

Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

APPLICATION FOR SUMMARY DISMISSAL BY CHILDREN’S GUARDIAN

REASONS FOR DECISION

Decision

1. The applicant applied to the Tribunal on 11 March 2020 for review of a decision of the Children’s Guardian on 16 October 2015 to cancel his Working with Children Check (WCCC) clearance.

2. The Children’s Guardian applied for a summary dismissal of the application on the basis that the decision made by the Children’s Guardian on 16 October 2015 has already been the subject of review by this Tribunal.

3. We have found that the Tribunal has previously conducted a review of the decision of the Children’s Guardian made on 16 October 2015 to cancel the applicant’s WWCC clearance and accordingly have dismissed his application.

Background

4. The applicant, referred to as EFY in these proceedings, was a teacher at an independent school that alleged that in 2014, using two laptops issued to him by the school, he accessed pornographic internet sites depicting females who appeared to be less than 18 years old engaging in sexual acts and/or exposing their breasts and genitalia.

5. The school notified the Ombudsman of its concerns and provided a report in accordance with s 25C of the Ombudsman Act 1974 (NSW) and in March 2015 the Ombudsman disclosed the report to the Children’s Guardian.

6. Sometime during or after October 2015 the school concluded in an undated ‘final investigation report’ that the applicant had accessed ‘young person pornography’ and that this constituted sexualised behaviour towards and involving a class of young people that he ought to have known was unacceptable in his role as a teacher.

7. The applicant was notified by a letter dated 16 October 2015 from the Children’s Guardian that his WWCC clearance had been cancelled pursuant to s 23 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act). He was informed that he is permitted to reapply for a WWCC clearance after 15 October 2020, five years after the date of the Notice of Cancellation.

8. The applicant lodged an application with the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT or the Tribunal), requesting a review of a decision made by the Children’s Guardian on 16 October 2015 to cancel his WWCC clearance. A hearing was held on 21 January 2016 and the review was determined on 8 April 2016 when the Tribunal dismissed the application (CFJ v Children’s Guardian [2016] NSWCATAD 62).

9. The applicant then sought leave to appeal to the Supreme Court which was granted. In November 2016 the Supreme Court dismissed the appeal (CFJ v Office of the Children’s Guardian [2016] NSWSC 1625).

10. On 5 November 2019 the applicant applied to the Tribunal for an enabling order and the Children’s Guardian lodged an application seeking summary dismissal pursuant to s 55(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).

11. A hearing of the summary dismissal application was held on 16 January 2020 and on 22 January 2020 the Tribunal dismissed the application, concluding that the applicant was not entitled to make an application for an enabling order under s 28(2) of the Act because he is a person whose clearance was cancelled, as distinct from a person who has been refused a clearance. The Tribunal notes that the distinction between these two concepts is clear throughout the Act.

12. On 24 February 2020 the applicant sent an email to the Children’s Guardian requesting ‘an early application for a WWCC as per Section 13A(2)(c) of the act’. He submits in the email that the Children’s Guardian made a sexual misconduct finding against him of ‘Crossing Professional Boundaries’ and cancelled his WWCC clearance, and that in submissions to the Tribunal the barrister acting for the Children’s Guardian ‘conceded that I had not crossed professional boundaries’.

13. By letter dated 10 March 2020 from Ms Sharminie Niles, Director of Legal Services with the Children’s Guardian, the applicant was informed that his request for an early application had been refused. He was told he is not permitted to reapply for a WWCC clearance until after 15 October 2020, the date 5 years from the date of the notice of cancellation. In the letter Ms Niles states that:

Section 13A(2)(c) of the Act provides that a further early application is permitted if, after the date of the cancellation, a finding the subject of an assessment requirement is quashed or set aside or otherwise expressly or impliedly ceases to have effect.

14. Ms Niles states that the applicant’s assertion in relation to s 13A(2)(c) is ‘misconceived’ because that section refers to a ‘finding of an assessment requirement’ which ‘in turn refers to Schedule 1.2(a) of the Act (a finding by a reporting body)’. The reporting body in EFY’s case was his former employer, a school, which investigated and made findings which were tendered in the Tribunal proceedings on 21 January 2016. The Children’s Guardian determined that a change of circumstances had not been demonstrated under s 13A(2)(c) of the Act because there was no information that the school’s findings had been ‘quashed or set aside or otherwise cease to have effect’.

15. The Children’s Guardian also considered the applicant’s request in the context of s 13A(2)(d) of the Act on the assumption that the applicant may have intended to make his request pursuant to this section which, in effect, grants a discretion to the Children’s Guardian to permit an early application. The Children’s Guardian determined that the applicant had not demonstrated a ‘change of circumstance’ and so an early application would not be allowed. Ms Niles notes that the applicant has not provided any information to address the concerns outlined in the decision of the Children’s Guardian to cancel his clearance or the decision of the Tribunal on 8 April 2016 in relation to the risk he poses to the safety to children.

16. On 11 March 2020 the applicant lodged a further application with the Tribunal requesting a review of a decision made by the respondent, the Children’s Guardian, on 16 October 2015.

17. The respondent sought summary dismissal of the application pursuant to section 55(1) of the CAT Act.

18. On 9 April 2020 the Tribunal ordered that the summary dismissal application be determined without the need for parties to be present.

19. The parties provided written submissions and evidence on the application for summary dismissal. The matter was determined on those written submissions without a hearing.

20. These Reasons for Decision relate to our decision to dismiss (pursuant to s 55(1) of the CAT Act) EFY’s application made on 11 March 2020 seeking review of a decision of the Children’s Guardian made on 16 October 2015 to cancel his WCCC clearance.

The written submissions of the applicant

21. In a statement attached to his application for an enabling order lodged on 11 March 2020, titled ‘Grounds for Application’, the applicant states that:

I recently applied to NCAT for an enabling order under section 28 of the Child Protection Act 2012. The judge ruled that I was not entitled to apply for the order as I was not someone who has previously been “refused a clearance” but instead was someone who had had their clearance cancelled. The judge also rules that there was nothing in Section 13A of the Act that precluded me from making an early application to the Children’s Guardian for a Working with Children Clearance as I provided evidence that there had been a “change of circumstances”. I have since made an early application under Section 13A to the Children’s Guardian for a clearance providing evidence of “a change in circumstances”. That application for a clearance has been refused (see attached). Since I have now been “refused a clearance” then according to Section 28 I am now entitled to apply for an enabling order.

22. In his submission dated 8 April 2020, the applicant asserts that he applied for an early WWCC clearance based on a statement made in the Reasons for Decision of the Tribunal issued on 22 January 2020 that he would, if he was not entitled to apply for an enabling order, be eligible to apply to the Children’s Guardian for a clearance.

23. The applicant argues that the Children’s Guardian has wrongly refused to permit his early application for a WWCC clearance by not recognising he has had a ‘change of circumstance’. He asserts that there has been a change of circumstances on two bases. Firstly, because the Children’s Guardian’s barrister conceded that he had not ‘crossed professional boundaries’ and secondly, because there had been ‘no sexual misconduct’.

24. On 7 May 2020 the applicant lodged further lengthy submissions. He set out the history to the matter and responded to the written submissions of the Children’s Guardian dated 24 April 2020. He asserted that his:

…basis for being able to apply is that he does not satisfy s26(1) and s26(2), that is, he is not prohibited by s26 from making an application, and he is an ineligible person because he has been refused a clearance (s28(2)).

At paragraph 18 of his submission the applicant states that he is not relying on “section 13 2 (c) or 2 (d)” as a basis for being able to apply for an enabling order. It is assumed that he is referring to ss 13A (2) (c) or (d) of the Act.

25. The applicant argued that he is not a ‘disqualified person’, that the Act states that the Children’s Guardian must grant a clearance to a person who is not a ‘disqualified person’, and that the only obstacle to prevent him obtaining a WWCC clearance is the Children’s Guardian’s decision not to allow an early application. He asserts that a refusal to allow an early application is a refusal to grant him a clearance.

26. The applicant submits that as a result of being “refused a clearance” he is entitled to apply for an enabling order pursuant to s 28 of the Act.

The written submissions of the respondent

27. On 24 April 2020 the Tribunal received written submissions from Counsel for the Children’s Guardian. In those submissions it is argued that the application lodged on 11 March 2020 requesting a review of the decision of the Children’s Guardian on 16 October 2015 should be dismissed because the Tribunal has already conducted a review of that decision and dismissed it, and the decision was then appealed to the Supreme Court which also dismissed the appeal.

28. The respondent’s submissions include that there is no provision in the Act, nor in the Administrative Decisions Review Act 1997 (NSW) (ADR Act), permitting a further review of the decision by the respondent to cancel the applicant’s WWCC clearance.

29. The respondent also argues that:

… the present application is for review of a decision that has already been reviewed, and therefore is incompetent, beyond the jurisdiction of the Tribunal, and misconceived and should be dismissed pursuant to par.55 (1) (b) of the Civil and Administrative Tribunal Act 2013…

30. Counsel then considers the possibility that the applicant may have intended to request a review of the decision of the Children’s Guardian made on 10 March 2020 and responds to a hypothetical amended or fresh application lodged by the applicant seeking such a review.

31. The respondent’s submissions then set out the reasons why such an application would also fail. It is argued that the Tribunal does not have jurisdiction to review decisions under s 13A (2) (d) of the Act or ‘expressions of opinion about a person’s standing’ under s 13A (2) (c) of the Act. Counsel opines that the Children’s Guardian’s opinion in relation to s 13A (2) (c) of the Act is ‘manifestly right’ and cannot be challenged because the finding that triggered the risk assessment by the Children’s Guardian was not a finding by the applicant’s employer but a notification from the Ombudsman that is not covered by s 13A (2) (c) of the Act. It is argued that, furthermore, even if the finding had been made by the applicant’s former employer, there is no evidence that this has changed as is required by the paragraph.

32. Counsel asserts that as a result of s 66 (1) of the ADR Act which provides that:

A decision determining an application for an administrative review under this Act of an administratively reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision…

the applicant is subject to a five-year embargo from reapplying for a WWCC clearance until 7 April 2021 (five years from the date of the review decision made on 8 April 2016, not from the date of the original decision by the Children’s Guardian.

Consideration

33. The application lodged on 11 March 2020 by the applicant is dismissed for the reasons set out below.

34. The nub of the applicant’s lengthy submissions is that he believes the refusal by the Children’s Guardian to allow an early application constitutes a refusal to grant him a clearance. He asserts that as a result of being ‘refused a clearance’ he is able to apply for an enabling order pursuant to s 28 of the Act.

35. We agree with Counsel for the Children’s Guardian that there is no provision in the CAT Act, nor in the ADR Act, that permits a further review by the Tribunal of the decision by the respondent to cancel the applicant’s WWCC clearance.

36. As was noted by Senior Member Lucy in the Reasons for Decision from a previous determination of this Tribunal relating to the same applicant (ECJ v Children’s Guardian [2020] NSWCATAD 28, determined on 22 January 2020):

…the legislation makes a distinction between a person who has been refused a clearance and a person whose clearance has been cancelled.

37. The applicant’s WWCC clearance was cancelled on 16 October 2015. He requested a review pursuant to s 27 (2) of the Act and, following a hearing on 21 January 2016, the Tribunal dismissed his application on 8 April 2016. The Supreme Court then dismissed an appeal of the Tribunal’s decision. The cancellation of the applicant’s WWCC clearance has already been the subject of review.

38. Under s 27(1) of the Act the Tribunal can review a decision of the Children’s Guardian to refuse a clearance. ‘Clearance’ is defined in section 5 of the Act as ‘an authorisation that is in force under this Act to engage in child-related work’.

39. We do not accept the applicant’s assertion that the refusal by the Children’s Guardian to allow him to lodge an early application constitutes a refusal to grant him a clearance. The refusal to allow the lodgement of an early application is simply that; it cannot be extrapolated to the meaning proposed by the applicant.

40. Although the applicant does not appear to be seeking a review of the decision made by the Children’s Guardian on 10 March 2020, we have given consideration to the possibility that this was what he intended, or his position should he seek to lodge an amended or fresh application seeking such a review.

41. We agree with Counsel for the Children’s Guardian that the Tribunal does not have jurisdiction to review decisions made by the Children’s Guardian under ss 13A (2) (c) or (d) of the Act. The Act makes no provision for the Tribunal to conduct such a review.

42. We also agree with Counsel for the Children’s Guardian that the event that triggered a risk assessment was the formal notification of concern made by the NSW Ombudsman to the Children’s Guardian on 6 March 2015. Counsel opines that the Children’s Guardian’s opinion in relation to s 13A (2) (c) of the Act cannot be challenged because the finding that triggered the risk assessment by the Children’s Guardian was the notification from the Ombudsman and that this is not covered by s 13A (2) (c) of the Act. We share Counsel’s view on this issue and also accept his assertion that, even if the finding had been made by the applicant’s former employer, there is no evidence before the Tribunal that this has changed as is required by the subsection.

43. We do not, however, agree with the proposition submitted by Counsel for the Children’s Guardian that the five-year embargo period will expire on 7 April 2021, five years after the decision of the Tribunal when it reviewed the decision of the Children’s Guardian, rather than on 15 October 2020, the date which is five years after the date the applicant’s clearance was cancelled by the Children’s Guardian.

44. The interpretation of the section by Counsel would, in effect, result in the applicant being penalised for seeking a review of the decision made by the Children’s Guardian and that review not being determined in his favour. We do not accept that this is what is intended by s 66 (1) of the ADR Act. The section applies to a wide range of administratively reviewable decisions and allows for review bodies to specify a later date on which a decision takes effect.

45. In this matter we consider that s 66 (1) of the ADR Act means that the decision of the Tribunal to dismiss the review application brought by the applicant is effective from 8 April 2016, the date on which the Tribunal made its decision. It does not change the date on which the Children’s Guardian refused the applicant a WWCC clearance (16 October 2015), which is the date from which the five year embargo period commences.

46. The applicant is eligible to reapply for a WWCC clearance after 15 October 2020.

Order

47. The order of the Tribunal is that:

1. The proceedings are dismissed pursuant to section 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW).

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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: 09 July 2020