BLU v Children’s Guardian [2015] NSWCATAD 41

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BLU v Children's Guardian [2015] NSWCATAD 41 Decision date: 13 March 2015 Before: S Leal, Senior Member Decision: The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a working with children check clearance. Catchwords: Administrative Law - review under s27 Child Protection (Working with Children) Act 2012 - refusal of working with children check clearance - the correct and preferable decision - whether the applicant poses a risk to the safety of children – whether sexual misconduct – whether grooming behaviour Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: BLU (Applicant) Children's Guardian (Respondent) Representation: Solicitor: Millards Lawyers (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1410487 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

reasons for decision Introduction 1. The applicant, who will be referred to as BLU, is a high school teacher by profession. On 20 August 2013, he sought a working with children check clearance under the Child Protection (Working with Children) Act 2012 (NSW) ('the Act'). 2. Following his request, the Office of the Children's Guardian (the Children's Guardian) conducted a risk assessment for BLU. The trigger for the investigation was the following finding made against BLU of 'sexual misconduct committed against, with or in the presence of a child, including the grooming of a child.' (clause 2 of Schedule 1 of the Act): The allegation was one of reportable conduct which involved sexual misconduct, in that it constituted a crossing of professional boundaries in that your behaviour in repeatedly taking photographs of boys in their swimwear can be construed as involving inappropriate and overly personal conduct towards or an inappropriate and overly personal focus on a child or young person, or a group of children or young persons, that has persisted in spite of your having been requested to desist from such behaviour in two different schools at different times over a period of 10 years or more. 1. Section 18(2) of the Act provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. 2. Following the completion of the risk assessment, which considered further allegations against him, BLU was issued with a 'Notice of proposed refusal of application' under s19 of the Act inviting him to make submissions to the Children's Guardian. Having considered BLU's subsequent submissions, the Children's Guardian made a decision on 25 August 2014 refusing to grant him a working with child check clearance. 3. BLU's application for review was lodged, within time, on 3 September 2014. He has therefore applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Act. 4. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant's application. 5. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it. (see section 63 Administrative Decisions Review Act 1997.) 6. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant was not to be published without the leave of the Tribunal. For this purpose the pseudonym BLU has been used for the applicant's name. Further pseudonyms have been used to refer to students and employers of BLU.