Hardingham v Chief Executive Officer, Department for Child Protection

In the case of Hardingham v Chief Executive Officer, Department for Child Protection, the applicant sought judicial review of a decision by the Secretary of the Department for Child Protection not to issue a negative notice under section 12(4) of the Working with Children (Criminal Record Checking) Act 2004 (WA). The applicant argued that the Secretary was not satisfied that there were no reasonable grounds to believe he was not fit to work with children, which was a prerequisite for issuing a negative notice. The dispute centred on whether the Secretary's decision not to issue a negative notice was lawful and whether the decision-making process complied with the statutory requirements.

The primary legal issue before the court was whether the Secretary's decision not to issue a negative notice was an error of law, specifically whether the Secretary failed to consider relevant information and whether the decision was unreasonable or arbitrary. The court had to determine the appropriate standard of review for the decision, considering whether the decision involved a jurisdictional fact that required the Secretary to be satisfied by the particular circumstances of the case before issuing a negative notice. The court also examined whether the Secretary's decision was based on an error of law or if it involved questions of fact or policy that were not subject to judicial review.

The court held that the Secretary's decision not to issue a negative notice was subject to judicial review and that the decision was indeed an error of law. The court found that the Secretary failed to adequately consider the applicant's acquittals and the abandonment of charges before trial, which were relevant circumstances that should have been taken into account in determining whether there were reasonable grounds to believe the applicant was not fit to work with children. The court emphasised that the decision-maker must be satisfied by the particular circumstances of the case before issuing a negative notice and that the Secretary's failure to consider the relevant information amounted to an error of law. Consequently, the court quashed the Secretary's decision and remitted the matter back for reconsideration.

The final orders of the court were that the application for leave to appeal be granted, the decision of the Secretary not to issue a negative notice be quashed, and the matter be remitted to the Secretary for reconsideration in accordance with the court's reasons. The court's decision underscored the importance of ensuring that decision-makers properly consider all relevant information and that their decisions are not arbitrary, capricious, or irrational.