BMU v Children’s Guardian [2015] NSWCATAD 129

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BMU v Children's Guardian [2015] NSWCATAD 129 Hearing dates: 12, 13 March 2015 and 20 April 2015 Decision date: 24 June 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: 1) The decision of the Children's Guardian dated 28 August 2014 to refuse to grant the applicant a Working with Children Check clearance is affirmed.

2) The application for review of the decision of the Children's Guardian filed 24 September 2014 is otherwise refused and dismissed. Catchwords: ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal - whether the applicant poses a risk to the safety of children - allegation and investigation of indecent assault incident - sustained finding by employer of inappropriate conduct - no criminal convictions- acquittal by jury on 2 charges of grooming by carriage service under section 474.27 of the Criminal Code, Criminal Code Act 1995 (Cth) and 2 of aggravated indecent assault under 61M(2) of the Crimes Act 1900 (NSW) taken to trial- onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety of children- the correct and preferable decision is to uphold the decision of the Children's Guardian and refuse to grant a working with children clearance. Legislation Cited: Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and Protection) Regulation 2012 Civil and Administrative Rules 2014 Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth) Evidence Act 1995 (NSW) Cases Cited: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children's Guardian [2014] NSWCATAD 115 BHL v Children's Guardian [2015] NSWCATAD 46 BHY v Children's Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children's Guardian [2015] NSWSC 523 BKN v Children's Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children's Guardian [2015] NSWCATAD 65 BLD v Children's Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children's Guardian [2015] NSWCATAD 36 BPX v Children's Guardian [2015] NSWCATAD 114 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children's Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BMU (Applicant) Children's Guardian (Respondent) Representation: Counsel: M Higgins (Respondent)