Office of the Children's Guardian v EQE

In the case of Office of the Children's Guardian v EQE, the dispute centred on the refusal of the defendant's application for a Working With Children Check Clearance, which was subsequently upheld by the New South Wales Civil and Administrative Tribunal (NCAT). The defendant, EQE, was charged with multiple counts of indecent assault and sexual assault of a minor but was found not guilty after a criminal trial. Following this, EQE applied to the NCAT for a review of the cancellation of the Working With Children Check Clearance. The NCAT upheld the clearance cancellation, and EQE sought judicial review of the Tribunal's decision. The primary legal issues for the court were whether the Tribunal had misapplied the statutory test set out in section 18(2) of the Child Protection (Working with Children) Act 2012, and whether the Tribunal had erred by misconstruing or misapplying section 30(1A) of the Act.

The court examined the Tribunal's decision and found that the Tribunal was unable to make a positive finding that the events alleged had occurred but concluded on the balance of probabilities that they did not occur. The court held that the Tribunal had erred by not considering whether EQE posed a real risk to the safety of children, which is a key aspect of the statutory test. The court found that the Tribunal had not properly considered the risk posed by EQE to children, which was a critical factor in the decision-making process under the Act. Consequently, the court set aside the order of the Tribunal and remitted the matter for reconsideration in light of the errors identified. The court emphasised the importance of correctly applying the statutory test and ensuring that all relevant factors, particularly the risk to children's safety, are properly considered in such cases.