GBQ v Children's Guardian - [2024] NSWCATAD 324

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GBQ v Children’s Guardian [2024] NSWCATAD 324
Hearing dates: 20 August 2024
Date of orders: 04 November 2024
Decision date: 04 November 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Bryant, Senior Member
Emeritus Prof P Foreman AM, General Member
Decision:
(1) The Tribunal declares that the Applicant is not to be treated as a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s 474.27A of the Criminal Code (Cth) that was found proven against the applicant in the District Court of NSW on 21 June 2018.
(2) The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).

Catchwords:
ADMINISTRATIVE LAW — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012

Legislation Cited:
Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
BKE v Office of the Children's Guardian [2015] NSWSC 523
Children’s Guardian v CVE [2017] NSWSC 1342 Commissioner for Children and Young People v FZ [2011] NSWCA 111
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
DAI v Children’s Guardian [2017] NSWCATAD 308
DOP v Children's Guardian [2019] NSWCATAD 23
ECQ v The Children’s Guardian [2021] NSWCATAD 217
FFB v Children’s Guardian [2022] NSWCATAD 71
Office of the Children’s Guardian v EQE [2022] NSWSC 871
OYJ v Secretary to the Department of Justice &
Regulation (Review and Regulation) [2019] VCAT 33
Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143

Texts Cited:
None cited

Category: Principal judgment
Parties: GBQ (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
J Birrell (Applicant)
G Bromwich (Respondent)
Solicitors:
Parker & Kissane (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2023/00348774
Publication restriction: With the exception of expert witnesses and officers of government agencies, the disclosure by way of 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.
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

Introduction

The applicant seeks an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (the Act). The respondent refused the applicant a working with children check clearance (WWCCC) because he is a disqualified person under the Act.
The applicant seeks…

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: [2024] NSWCATAD 324
Decision Date: 04 November 2024

CaseChat Overview and Summary

In the matter of GBQ and the Children's Guardian, the dispute centred on the eligibility of the applicant for a working with children check clearance under the Child Protection (Working with Children) Act 2012 (NSW). The application was heard and determined by the Civil and Administrative Tribunal of New South Wales. The applicant, GBQ, sought an enabling order to be exempt from disqualification in light of a previous conviction for using a carriage service to transmit an indecent communication to a person under the age of 16 years. The conviction was upheld by the District Court of New South Wales on 21 June 2018.

The primary legal issue before the court was whether the applicant's previous conviction for the specified offence rendered him ineligible for a working with children check clearance under the relevant statutory framework. This involved an interpretation of the Child Protection (Working with Children) Act 2012 and an understanding of the implications of the applicant's criminal history. The court needed to weigh the public interest in child protection against the individual's right to rehabilitation and reintegration into society.

The Tribunal found that despite the applicant's conviction, there were compelling circumstances that justified granting an enabling order. The Tribunal considered evidence of the applicant's rehabilitation efforts, his expressed remorse, and the absence of any further incidents. The Tribunal concluded that the public interest in child protection could be adequately safeguarded without imposing a lifelong disqualification on the applicant. Consequently, the Tribunal declared that the applicant was not to be treated as a disqualified person for the purposes of section 28(1) of the Act and ordered the Children’s Guardian to grant 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 section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s 474.27A of the Criminal Code (Cth) that was found proven against the applicant in the District Court of NSW on 21 June 2018.

(2) The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).

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:	GBQ v Children’s Guardian [2024] NSWCATAD 324
Hearing dates:	20 August 2024
Date of orders:	04 November 2024
Decision date:	04 November 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Bryant, Senior Member Emeritus Prof P Foreman AM, General Member
Decision:	(1) The Tribunal declares that the Applicant is not to be treated as a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s 474.27A of the Criminal Code (Cth) that was found proven against the applicant in the District Court of NSW on 21 June 2018. (2) The Children’s Guardian is to grant a working with children check clearance to the applicant pursuant to section 28(6) of Child Protection (Working with Children) Act 2012 (NSW).
Catchwords:	ADMINISTRATIVE LAW — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012
Legislation Cited:	Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013 Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	BKE v Office of the Children's Guardian [2015] NSWSC 523 Children’s Guardian v CVE [2017] NSWSC 1342 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAI v Children’s Guardian [2017] NSWCATAD 308 DOP v Children's Guardian [2019] NSWCATAD 23 ECQ v The Children’s Guardian [2021] NSWCATAD 217 FFB v Children’s Guardian [2022] NSWCATAD 71 Office of the Children’s Guardian v EQE [2022] NSWSC 871 OYJ v Secretary to the Department of Justice & Regulation (Review and Regulation) [2019] VCAT 33 Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143
Texts Cited:	None cited
Category:	Principal judgment
Parties:	GBQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J Birrell (Applicant) G Bromwich (Respondent) Solicitors: Parker & Kissane (Applicant) Crown Solicitor (Respondent)
File Number(s):	2023/00348774
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the disclosure by way of 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. 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.