BZU v Children's Guardian [2016] NSWCATAD 3

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BZU v Children's Guardian [2016] NSWCATAD 3 Hearing dates: 6 November 2015 Date of orders: 05 January 2016 Decision date: 05 January 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M W Anderson - Senior Member Dr B Field - General Member Decision: 1) The decision of the Children's Guardian dated 19 January 2015 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 6 February 2015 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 –Murder conviction of an adult Aboriginal man on 31 July 1989 and life sentence imposed in the Supreme Court of Queensland - non-parole period of 13 years - 15 years served in prison prior to release on parole - 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 Legislation Cited: Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and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) Evidence Act 1995 (NSW) Cases Cited: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1 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 BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 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 BQK v Children's Guardian [2015] NSWCATAD 265 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 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 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BZU (Applicant) Children's Guardian (Respondent) Representation: Counsel: T Baw (Applicant) J Harris (Respondent)