EPQ v Children's Guardian - [2022] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EPQ v Children’s Guardian [2022] NSWCATAD 129
Hearing dates: 26 July 2021
Date of orders: 21 April 2022
Decision date: 21 April 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
E Hayes, General Member
Decision:
(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction, in October 2003, of three offences of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW).
(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a working with children check clearance.

Catchwords:
ADMISTRATIVE LAW – refusal of a working with children check clearance – disqualified person seeking an enabling order – 2001 disqualifying offence aggravated with an act of indecency - s 61M(1) of the Crimes Act 1900 NSW

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
BLM v NSW Office of Children’s Guardian [2015] NSWCATAD 4
EFH v Children’s Guardian [2020] NSWCATAD 256

Category: Principal judgment
Parties: EPQ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
I Wallach (Applicant)
R J Pietriche (Respondent)
Solicitors:
HWL Ebsworth Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2021/00073416
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. 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

reasons for decision

The applicant is a ‘disqualified person’ under s 18(1) of the Child Protection (Working with Children) Act 2015 (NSW) (WWC Act). He is a ‘disqualified person’ because, in 2003 he was convicted of an offence that is prescribed in cl 1(1)(e) of Sch 2 of that Act a ‘disqualifying offence’.
On 9 February 2021, the applicant made an application to the respondent seeking the grant of a working with children check clearance (a clearance): WWC Act s 13. On 17 February 2021, the respondent determined to refuse his application, as she was required to do under s 18(1) of the WWC Act.
On 15 March 2021, the applicant lodged this application with the Tribunal seeking:

an order (i.e. an enabling order), under s 28(1) of the WWC Act, that he not to be treated as a ‘disqualified person’ for the purpose of that Act in respect of his 2003 convictions; and

an order that…

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.

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Details

Case: [2022] NSWCATAD 129
Decision Date: 21 April 2022

CaseChat Overview and Summary

In the matter of EPQ versus the Children's Guardian, the dispute centred on the applicant's eligibility for a working with children check clearance, despite a prior conviction that rendered him a disqualified person under the Child Protection (Working with Children) Act 2012. The applicant, having been convicted in 2003 of three counts of aggravated indecent assault under the Crimes Act 1900 (NSW), sought an enabling order to be granted a clearance. The case was heard in the Civil and Administrative Tribunal of New South Wales, which had to determine the applicability of the disqualifying provisions in light of the applicant's past conduct.

The primary legal issue before the Tribunal was whether the applicant's 2001 offence, which was aggravated by an act of indecency, qualified as a disqualifying offence under section 61M(1) of the Crimes Act 1900 (NSW). Additionally, the Tribunal had to consider whether an enabling order could be granted to the applicant under section 28(6) of the Child Protection (Working with Children) Act 2012, despite his past conviction. The decision hinged on the interpretation of the statutory provisions and the assessment of the applicant's suitability for a working with children check clearance.

The Tribunal found that the 2001 offence constituted a disqualifying offence as it was aggravated with an act of indecency. However, in exercising its discretion under section 28(6) of the Child Protection (Working with Children) Act 2012, the Tribunal concluded that the applicant's 2003 conviction did not preclude him from being granted a working with children check clearance. The Tribunal considered the applicant's rehabilitation and the time elapsed since the offence, determining that the public interest in child protection could be balanced with the applicant's right to engage in work involving children. Consequently, the Tribunal declared that the applicant was not to be treated as a disqualified person for the purposes of the Act and ordered the Children's Guardian to issue a working with children check clearance to the applicant.

Orders

Orders of the court

(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction, in October 2003, of three offences of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW).

(2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a working with children check clearance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	EPQ v Children’s Guardian [2022] NSWCATAD 129
Hearing dates:	26 July 2021
Date of orders:	21 April 2022
Decision date:	21 April 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member E Hayes, General Member
Decision:	(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction, in October 2003, of three offences of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW). (2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a working with children check clearance.
Catchwords:	ADMISTRATIVE LAW – refusal of a working with children check clearance – disqualified person seeking an enabling order – 2001 disqualifying offence aggravated with an act of indecency - s 61M(1) of the Crimes Act 1900 NSW
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 BLM v NSW Office of Children’s Guardian [2015] NSWCATAD 4 EFH v Children’s Guardian [2020] NSWCATAD 256
Category:	Principal judgment
Parties:	EPQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Wallach (Applicant) R J Pietriche (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Crown Solicitor (Respondent)
File Number(s):	2021/00073416
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. 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