DOP v Children’s Guardian [2019] NSWCATAD 23

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DOP v Children's Guardian [2019] NSWCATAD 23 Hearing dates: 18 December 2018 Date of orders: 06 February 2019 Decision date: 06 February 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: C A Mulvey, Senior Member R Royer, General Member Decision: (1) It is declared the applicant is not a Disqualified Person for the purposes of section 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) for the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s474.27A of the Criminal Code (Cth) entered on 30 April 2015 at the Magistrates Court at Latrobe Valley in Victoria. (2) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed on 31 August 2018 is granted. (3) The Children's Guardian is to grant a working with children check clearance to the applicant pursuant to section 26(6) of Child Protection (Working with Children) Act 2012 (NSW). Catchwords: ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – using a carriage service to transmit an indecent communication to a person under the age of 16 years pursuant to s 474.27A of the Criminal Code (Cth) – enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work Legislation Cited: Administrative Decisions Review Act 1997(NSW) Child Protection (Offenders Registration) Act 2000 (NSW) 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 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: 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 BKE v Office of the Children's Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children's Guardian [2013] NSWADT 310 Children's Guardian v BQJ [2016] NSWSC 869 CHB v Children's Guardian [2016] NSWCATAD 214 CJT v Office of the Children's Guardian [2016] NSWSC 738 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 CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 DHB v Children's Guardian [2018] NSWCATAD 123 M v M [1988] HCA 68; 166 CLR 69 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 R v Commission for Children and Young People [2002] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 Smith v Commissioner of Police [2014] NSWCATAD 184 T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985 ZZ v Secretary of the Department of Justice [2013] VSC 267 Category: Principal judgment Parties: DOP (Applicant) Children's Guardian (Respondent) Representation: Counsel: J Tyler-Stott (Applicant) I Fraser (Respondent)