S v Commissioner for Fair Trading

Case [2014] ACAT 59

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

S v COMMISSIONER FOR FAIR TRADING
(Occupational Discipline) [2014] ACAT 59

OR 13/42

Catchwords:             OCCUPATIONAL DISCIPLINE – WORKING WITH VULNERABLE PERSONS (BACKGROUND CHECKING) - unacceptable risk of harm to a vulnerable person – negative notice refusing registration – merits review of decision – examination and application of risk assessment guidelines – evaluation of risks arising from offences - actions in private life and actual employment in regulated activity – negative notice set aside

Legislation:Working with Vulnerable People (Background Checking) Act 2011, ss 7, 8, 9, 10, 11, 12, 21, 22, 23, 24, 25, 26, 27, 28, 40, 41, 48, 64 and 71, and parts 2, 3, 4, 5, 6, 7 and 8, and schedule 2

Subordinate

Legislation:Magistrates Court (Working with Vulnerable People Infringement Notices) Regulation 2012, ss 42 and 71

Working with Vulnerable People (Background Checking) Regulation 2012

Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1) (Disallowable Instrument DI2012-190)

Cases:Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28

Department of Human Services v D R [2013] VSC 579

Phillips and Inspector-General in Bankruptcy [2012] AATA 788

Shi v Migration Agents Registration Authority [2008] HCA 31

Woods v DPP [2014] VSC 1

ZZ v Secretary, Department of Justice & Anor [2013] VSC 267

Texts/Papers:            Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011)

AS/NZS ISO 31000:2009 Risk management – Principles and guidelines

Tribunal:             Mr P. Sutherland - Senior Member

Ms M-T. Daniel -   Member

Date of Orders:         19 September 2014

Date of Reasons for Decision:      19 September 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL             OR 13/42

BETWEEN:

“S”

Applicant

AND:

COMMISSIONER FOR FAIR TRADING

Respondent

TRIBUNAL:              Mr P. Sutherland - Senior Member

Ms M-T. Daniel - Member

DATE:19 September 2014

ORDER

The Tribunal Orders that:

1. The decision of the Respondent to issue a negative notice under section 40 of the Working With Vulnerable People (Background Checking) Act 2011 is set aside and substituted by a decision under section 41 of that Act to register the applicant for a period of three years.

………………………………..

Mr P. Sutherland - Senior Member

for and on behalf of the Tribunal

REASONS FOR DECISION

  1. On 8 November 2013, the Applicant filed an application for review of the Respondent’s decision of 5 November 2013 to issue a negative notice under the Working with Vulnerable People (Background Checking) Act 2011 (ACT) (the “WWVP Act”). This is a decision that the Applicant was not suitable to hold a general registration under the VVWP Act on the grounds that she presented an unacceptable risk of harm to vulnerable people.

  2. The ACAT is empowered to review the decision of the Respondent by Part 7 and Schedule 2 of the WWVP Act and the review is conducted in accordance with the provisions of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the “ACAT Act”).

  3. On 20 November 2013, the General President made Directions for the filing of…

Continue reading S v Commissioner for Fair Trading

Sign in free to access the full text

Details
AGLC
S v Commissioner for Fair Trading [2014] ACAT 59
Case
[2014] ACAT 59
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal involved a dispute between the applicant and the Commissioner for Fair Trading. The applicant, a prospective care worker, sought registration under the Working With Vulnerable People (Background Checking) Act 2011. The Commissioner issued a negative notice under section 40 of the Act, declining to grant the applicant registration. The applicant appealed this decision, leading to a hearing before the Tribunal.

The primary legal issue before the Tribunal was whether the Commissioner was correct in issuing a negative notice to the applicant. This involved an examination of the evidence presented by the Commissioner and whether it sufficiently justified the refusal to register the applicant. The applicant argued that the decision was flawed and should be set aside in favour of a positive registration decision. The Tribunal had to consider whether the Commissioner's decision was reasonable and in accordance with the relevant statutory provisions.

In delivering its decision, the Tribunal found that the Commissioner had failed to provide adequate reasons for the negative notice. The evidence presented was not sufficient to justify the refusal of registration. The Tribunal held that the decision was unreasonable and did not comply with the statutory requirements. Consequently, the Tribunal set aside the Commissioner’s negative notice and substituted it with a decision to register the applicant under section 41 of the Act. The Tribunal further ordered that the registration should be for a period of three years.

Orders

Orders of the court

The Tribunal Orders that:

1. The decision of the Respondent to issue a negative notice under section 40 of the Working With Vulnerable People (Background Checking) Act 2011 is set aside and substituted by a decision under section 41 of that Act to register the applicant for a period of three years.

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.