Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: EMP v Children’s Guardian [2020] NSWCATAD 301 Hearing dates: 3 December 2020 Date of orders: 9 December 2020 Decision date: 09 December 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: (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 cancellation 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 Aggravated indecent assault victim under authority of offender and acquittal – where stay refused.
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Commonwealth Criminal Code (1995) (Cth)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Interpretation Act 1987 (NSW)
Cases Cited: 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881
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
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
BXJ v Children's Guardian [2016] NSWCATAD 11
BYR v Children’s Guardian [2013] NSWADT 310
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BQJ [2016] NSWSC 869
Children’s Guardian v CKF [2017] NSWSC 893
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v…
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- Case
- [2020] NSWCATAD 301
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the application for an interim stay of the decision should be granted, considering the principles outlined in sections 60, 61, and 62 of the Administrative Decisions Review Act 1997 (NSW). The key issues included the balance between the applicant's right to work and the paramount need to protect children from potential harm. The court examined the evidence and arguments presented by both parties, assessing the likelihood of success of the review and the potential harm that could result from the cancellation of the clearance.
The court concluded that the paramount consideration was the protection of children from potential abuse. Despite the acquittal of the applicant, the court found that there was a significant risk to children if the clearance was reinstated. The court was not satisfied that the applicant's rights were sufficiently protected to warrant an interim stay, and therefore, refused to grant the application. The court also imposed restrictions on the publication of the applicant's name and details, in line with section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), to safeguard the privacy and welfare of the child involved.
In conclusion, the court dismissed the application for a stay and refused to reinstate the applicant's working with children clearance. The court's decision underscored the importance of child protection and the weight given to the Children's Guardian's decision in such matters. The court's order also included provisions for the protection of the child's identity, reflecting the sensitivity of the case and the need to balance competing interests.
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
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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