EMX v Children’s Guardian [2022] NSWCATAD 222

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EMX v Children's Guardian [2022] NSWCATAD 222 Hearing dates: 2 June 2021 Date of orders: 1 July 2022 Decision date: 01 July 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member L Houlahan, Senior Member Decision: (1) we are not satisfied that, as at the date of hearing, the applicant poses a real and appreciable risk to the safety of children; (2) we are satisfied that a reasonable person, who is acquainted with all the relevant facts of which the Tribunal is aware, would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant is engaged in any child-related work, and (3) it is in the public interest to make the order sought by the applicant. (4) The decision of the respondent, made on 25 November 2019, to refuse the applicant application for a working with children check clearance is set aside. (5) In substitution for the decision of the respondent, the following decision is made: the applicant is granted a working with children check clearance. Catchwords: ADMINISTRATIVE LAW – child protection - review of a decision of the respondent to refuse to grant the applicant with a working with children check clearance under s 18(2) of the Child Protection (Working with Children) Act 2015 – applicant convicted of a disqualifying offence in 2001 – in 2008 the former Administrative Decisions Review Tribunal made an unconditional order declaring that the then legislative scheme regarding child-related employment was not to apply to the applicant in regard to his 2001 disqualifying convictions – in 2018 the applicant made an application, under the new legislative scheme (Child Protection (Working with Children) Act 2015) – by reason of the savings and transitional provision in cl 6 of Sch 3 of the Child Protection (Working with Children) Act 2015 the applicant was not a disqualified person – whether the applicant poses a risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection Legislation Amendment Act 2015 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Commission for Children and Young People Act 1998 (NSW) (repealed) Commission for Children and Young People Amendment Act 2005 (NSW) (repealed) Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 11 BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 Texts Cited: None cited Category: Principal judgment Parties: EMX (Applicant) Children's Guardian (Respondent) Representation: Counsel: I Fraser (Respondent)