ECH v Children’s Guardian [2020] NSWCATAD 52

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ECH v Children's Guardian [2020] NSWCATAD 52 Hearing dates: 7 February 2020 Date of orders: 07 February 2020 Decision date: 10 March 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: J Lonsdale, Senior Member P Foreman, General Member Decision: (1) The Tribunal orders, pursuant to s 59 of the Administrative Review Act, that the respondent is not required to lodge copies of the material ("Confidential Material") annexed to the confidential affidavit ("Confidential Affidavit") filed in support of the application heard on 7 February 2020. (2) The Tribunal orders, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, the publication of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit, is prohibited. (3) The Tribunal orders, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, the disclosure of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit is restricted to the respondent, the legal representatives of the respondent and the Tribunal. (4) The Tribunal orders, pursuant to s 64(1)(b), s 64(1)(c) and s 64(1)(d) of the Civil and Administrative Tribunal Act, the recording and transcript of the preliminary hearing held on 7 February 2020, including any evidence given during the preliminary hearing, are not to be published or disclosed to the applicant or the public. (5) The Tribunal declines to receive the Confidential Material or the Confidential Affidavit as evidence in the substantive hearing of the applicant's application to the Tribunal, except to the extent the respondent makes the Confidential Material and the Confidential Affidavit available to the applicant. Catchwords: Working with children check clearance – confidentiality and relying on evidence – procedural fairness Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Cases Cited: Bropho v Western Australia (1990) 171 CLR 1 Coco v The Queen (1994) 179 CLR 427 Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 9 CYL v YZA [2017] NSWCATAP 105 Manning v Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 652 Lee v New South Wales Crime Commission [2013] HCA 39 Manning v Commissioner of Police [2020] NSWCATAD 9 Potter v Minahan (1908) 7 CLR 277 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Texts Cited: None cited Category: Procedural and other rulings Parties: ECH (Applicant) Children's Guardian (Respondent) Representation: Counsel: I Fraser (Respondent)