FVC v Children's Guardian

[2023] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FVC v Children’s Guardian [2023] NSWCATAD 129

Hearing dates:

25 May 2023

Date of orders:

25 May 2023

Decision date:

31 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr J Lucy, Senior Member

Decision:

(1) The applicant’s application for a stay or other interim order is refused.

Catchwords:

ADMINISTRATIVE REVIEW – Working with children check clearance – Where applicant is a disqualified person – Application for stay – Whether Tribunal has jurisdiction to grant a stay - Stay refused

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW), ss 18, 28, 30(2)

Child Protection (Working with Children) Amendment Act 2022 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW), ss 29, 43, 64(1)(a)

Category:

Consequential orders

Parties:

FVC (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00144284

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the disclosure, by way of publication, 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.
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

1. The applicant is a disqualified person within the Child Protection (Working with Children) Act 2012 (NSW) (the Act). He has applied to the Tribunal, under s 28 of the Act, for an order declaring that he is not to be treated as a disqualified person for the purposes of the Act in respect of an offence he committed over 30 years ago. That type of application is referred to in s 28 of the Act as an application for an enabling order.

2. The applicant also applied for an interim order declaring that he is not to be treated as a disqualified person and an interim order granting him a working with children check clearance, pending the final determination of the proceedings.

3. On 25 May 2023, following a short hearing, I refused his application for an interim order. These are my reasons for doing so.

Does the Tribunal have jurisdiction to make the order sought?

4. The Children’s Guardian submitted that the Tribunal does not have jurisdiction to make the interim orders sought by the applicant.

5. The Children’s Guardian points out that, before the Child Protection (Working with Children) Amendment Act 2022 (NSW) (the Amendment Act) was assented to on 1 July 2022, s 30(2) of the Act provided:

30   Determination of applications and other matters

…

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

6. The effect of the Amendment Act was to remove the reference in s 30(2) to s 28, such that s 30(2) of the Act now provides:

(2) On an application under section 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

7. The respondent contends, and I accept, that section 30(2) of the Act no longer provides the Tribunal with a power to stay the operation of a determination by the Children’s Guardian on an application under section 28 of the Act.

8. I raised with the parties, at the hearing, whether the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) gives the Tribunal a power to make the order sought by the applicant. The respondent submitted that it did not.

9. Section 43 of the NCAT Act provides:

43 Effect of pending general applications and appeals

(1) This section applies to the making or lodgment of any of the following (a pending general application or appeal)—

(a) a general application for the review or other re-examination of a decision made by an external decision-maker,

(b) an external appeal,

(c) an internal appeal.

Note—

See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 for the effect of pending administrative review applications on administratively reviewable decisions and the making of orders staying or otherwise affecting such decisions.

(2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision.

(3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.

10. An application for an enabling order is, in my opinion, a general application within s 29 of the NCAT Act, being an application for a general decision. A general decision is a decision of the Tribunal determining a matter over which it has general jurisdiction (NCAT Act, s 29(3)). The Tribunal has general jurisdiction over a matter if legislation enables the Tribunal to make decisions of a kind specified by the legislation in respect of that matter and the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal (NCAT Act, s 29(1)).

11. I do not consider, however, that the application is a general application “for the review or other re-examination of a decision made by an external decision-maker” within s 43(1)(a) of the NCAT Act. That is because the Children’s Guardian, although an external decision-maker in relation to some applications, is not given power to make a decision in respect of granting working with children check clearances to disqualified persons. The Act provides that the Children’s Guardian “must not grant a working with children check clearance” to a disqualified person (Act, s 18(1)).

12. The Children’s Guardian could be taken to have made a decision that a person is a disqualified person. However, if that is a decision, that is not a decision the Tribunal is given power to review. Rather, s 28(1) of the Act provides that “on an application of a disqualified person” the Tribunal has certain powers.

13. For these reasons, s 43 of the NCAT Act does not empower the Tribunal to make interim orders in respect of disqualified persons under the Act. If I am wrong and it does so, it does not go so far as to authorise the Tribunal to grant the disqualified person a working with children check clearance on an interim basis. That would not, in my view, be an order “staying or otherwise affecting the operation of a decision to which a pending general application … relates”.

14. If the Tribunal does have jurisdiction to grant the order sought, contrary to my view, I would decline to do so. That is because, in any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children (Act, s 28(7)). The applicant has not provided sufficient evidence to displace that presumption for the purposes of the interim order he seeks.

15. For these reasons, I have refused the applicant’s application for an interim order.

Order

16. I make the following order:

1. The applicant’s application for a stay or other interim order is refused.

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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: 31 May 2023