BDL v Children's Guardian (No 2) [2016] NSWCATAD 133

BDL v Children's Guardian (No 2) [2016] NSWCATAD 133

On the balance of probabilities, having regard to all mandatory statutory considerations including substantiated workplace misconduct, criminal history, absence of mitigating or risk reduction evidence, and the paramountcy of child protection, the applicant poses a real and appreciable risk to the safety, welfare and well-being of children. The correct and preferable decision is to affirm the refusal of a working with children check clearance. No conditions may be lawfully imposed upon a clearance grant.

Jurisdiction
Australia
Judgment Date
05 July 2016
Procedural Posture
Application for Review Under Section 27 Child Protection (working With Children) Act 2012 (nsw) / Final Determination on the Papers
Outcome
Refusal affirmed
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'review of Administrative Decision' 'paramountcy of Child Safety' 'disciplinary Proceedings' 'interim Bar' 'criminal History Impact on Clearance' 'conditions and Limitations Under the Act']
['administrative Law' 'child Protection' 'employment Law'] ['working With Children Check Clearance' 'risk Assessment' 'review of Administrative Decision' 'paramountcy of Child Safety' 'disciplinary Proceedings' 'interim Bar' 'criminal History Impact on Clearance' 'conditions and Limitations Under the Act']

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Procedural Posture

Application for Review Under Section 27 Child Protection (working With Children) Act 2012 (nsw) / Final Determination on the Papers

Legal Issues

  1. 1 ['Whether the applicant poses a real and appreciable risk to the safety, welfare and well-being of children' "Whether the refusal of a working with children check clearance by the Children's Guardian is the correct and preferable decision" 'Whether the tribunal may lawfully attach conditions to a working with children check clearance under section 27 of the Act' 'Onus and standard of proof in a review under section 27']

Ratio Decidendi

On the balance of probabilities, having regard to all mandatory statutory considerations including substantiated workplace misconduct, criminal history, absence of mitigating or risk reduction evidence, and the paramountcy of child protection, the applicant poses a real and appreciable risk to the safety, welfare and well-being of children. The correct and preferable decision is to affirm the refusal of a working with children check clearance. No conditions may be lawfully imposed upon a clearance grant.

Court Disposition

Refusal affirmed

Orders

  • ["The final decision of the Children's Guardian dated 29 April 2014 to refuse the applicant's application for a Working with Children Check clearance is affirmed."]