GCP v Children's Guardian - [2025] NSWCATAD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GCP v Children’s Guardian [2025] NSWCATAD 9
Hearing dates: 23 October 2024
Date of orders: 09 January 2025
Decision date: 09 January 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
E Hayes, General Member
Decision:
The application for an enabling order is dismissed.

Catchwords:
ADMINISTRATIVE LAW – working with children check clearances – refusal on the grounds that the applicant had been convicted of a disqualifying offence – enabling order sought – criminal offence since repealed and replaced by new provisions – whether conduct ceased to be an offence – whether applicant is a disqualified person – whether Tribunal satisfied that applicant does not pose a risk

Legislation Cited:
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Amendment) Act 1989 (NSW)
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Cases Cited:
BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CXZ v Children’s Guardian [2020] NSWCA 338
Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241
M v M [1988] HCA 68; (1988) 166 CLR 69
Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:
Explanatory Note, Crimes (Amendment) Bill 1989
Second reading speech of the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, Attorney General, 6 June 2018, Hansard
Explanatory Note to the Crimes (Amendment) Bill 1989

Category: Principal judgment
Parties: GCP (Applicant)
Children’s Guardian (Respondent)
Representation:
Applicant (self-represented)
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2023/00442192
Publication restriction: Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victim or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

On 10 November 2023, GCP applied for a working with children check clearance pursuant to the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), nominating “Clubs or other bodies providing services to children” as the relevant child related employment sector. GCP was notified that his application was refused by notice of decision dated 16 November 2023.
The basis for refusal was that GCP was a “disqualified person” under the WWC Act because in 1988 he had been convicted of an offence identified as an “disqualifying offence” for the purposes of the WWC Act. The offence was indecent assault against a person who was under 16 years old.
GCP was notified that he was a disqualified person, and the respondent could therefore not grant him a working with children check clearance. GCP was also notified that he was barred from working with children for five years, that he could not make a further application for five years after the date of the notice without the permission of the respondent and he must not work in paid…

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.

Keep reading for free

Create a free CaseChat account to read GCP v Children's Guardian and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWCATAD 9
Decision Date: 09 January 2025

CaseChat Overview and Summary

In GCP v Children's Guardian, the Central Administrative Tribunal considered the refusal of a working with children check clearance to the applicant, GCP, on the basis of a previous conviction for an offence that was deemed disqualifying. GCP sought an enabling order, arguing that the offence in question had been repealed and replaced by new provisions, and therefore, the conduct no longer constituted an offence. The central issue for the Tribunal was to determine whether the applicant's conduct, as previously defined by the repealed offence, could still be considered disqualifying under the current legislative framework. Additionally, the Tribunal had to assess whether GCP was a disqualified person under the new provisions and whether the Tribunal was satisfied that GCP did not pose a risk to children.

The Tribunal meticulously reviewed the legislative changes and the criteria for granting an enabling order. It noted that the repealed offence no longer existed in the current statutory framework and that GCP's conduct, if committed today, would not constitute an offence. However, the Tribunal found that the historical conviction still qualified GCP as a disqualified person under the previous law, which was the applicable law at the time of the conviction. The Tribunal concluded that the enabling order provisions were not intended to retroactively alter the status of disqualified persons based on repealed offences. Furthermore, the Tribunal was not satisfied that GCP did not pose a risk to children, considering the nature of the previous offence and the potential vulnerability of children.

Consequently, the Tribunal dismissed the application for an enabling order. The Tribunal's decision underscores the importance of the timing of convictions in relation to legislative changes and the inherent risk considerations that must be addressed when granting such orders.

Orders

Orders of the court

The application for an enabling order is dismissed.

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:	GCP v Children’s Guardian [2025] NSWCATAD 9
Hearing dates:	23 October 2024
Date of orders:	09 January 2025
Decision date:	09 January 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Redfern PSM, Senior Member E Hayes, General Member
Decision:	The application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – working with children check clearances – refusal on the grounds that the applicant had been convicted of a disqualifying offence – enabling order sought – criminal offence since repealed and replaced by new provisions – whether conduct ceased to be an offence – whether applicant is a disqualified person – whether Tribunal satisfied that applicant does not pose a risk
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Amendment) Act 1989 (NSW) Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
Cases Cited:	BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 CXZ v Children’s Guardian [2020] NSWCA 338 Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241 M v M [1988] HCA 68; (1988) 166 CLR 69 Tilley v Children’s Guardian [2017] NSWCA 174
Texts Cited:	Explanatory Note, Crimes (Amendment) Bill 1989 Second reading speech of the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, Attorney General, 6 June 2018, Hansard Explanatory Note to the Crimes (Amendment) Bill 1989
Category:	Principal judgment
Parties:	GCP (Applicant) Children’s Guardian (Respondent)
Representation:	Applicant (self-represented) Solicitors: Crown Solicitor (Respondent)
File Number(s):	2023/00442192
Publication restriction:	Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victim or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.