Keane v Roads and Maritime Services

The case of Keane v Roads and Maritime Services involved the applicant, Keane, challenging the decision of the Children’s Guardian to refuse a Working with Children Check clearance. The decision was under review by the Administrative Appeals Tribunal (AAT) in accordance with section 27 of the Child Protection (Working with Children) Act 2012. The refusal of the clearance was based on an allegation of indecent assault involving a vulnerable person, with a finding of sexual misconduct reported but no criminal convictions due to an acquittal by a jury on related charges under the Crimes Act 1900 (NSW).

The primary legal issue for the court was to determine the correctness and preferableness of the Children’s Guardian's decision, given the material presented to the Tribunal. Specifically, the court needed to assess whether Keane posed a real and appreciable risk to the safety of children, despite the acquittal. The onus of proof in a review under section 27 was also a significant consideration, as it required the applicant to demonstrate that the decision was incorrect or preferable in a different manner.

In reaching its decision, the AAT considered the nature of the allegations and the findings of the investigation, concluding that the applicant did indeed pose a real and appreciable risk to the safety of children. The court found that the Children’s Guardian's decision was both correct and preferable, given the material before the Tribunal. It was determined that the acquittal did not negate the risk posed by the applicant, and therefore, the refusal of the clearance was upheld.

The final orders of the court affirmed the Children’s Guardian's decision dated 5 December 2014 and dismissed the applicant's review application filed on 11 December 2014. The refusal to grant Keane a Working with Children Check clearance was upheld, and the application for review was refused and dismissed.