CHI v Children’s Guardian (No 2) [2016] NSWCATAD 272

CHI v Children’s Guardian (No 2) [2016] NSWCATAD 272

The amended s 26 did not apply to the applicant because, on the proper construction of cl 19(1), an application for a working with children check clearance is not necessarily finally determined merely when the Children's Guardian refuses it. Where a person has an existing right under Part 4 to seek review or an enabling order and that right remains on foot, final determination depends on whether that right is exercised; if it is exercised, the clearance application is not finally determined until the Tribunal determines the Part 4 application. The applicant had an existing right to bring an application under Part 4 immediately before commencement of the amended s 26, so the former s 26...

Jurisdiction
Australia
Judgment Date
24 November 2016
Procedural Posture
Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 (nsw) / Procedural Ruling on Jurisdiction, Determined on the Papers
Outcome
The Tribunal found that it had jurisdiction to hear and determine the applicant's application and listed the matter for directions.
Legal Topics
['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'savings and Transitional Provisions' 'jurisdiction of the Tribunal']
['administrative Law' 'child Protection' 'statutory Interpretation'] ['working With Children Check Clearance' 'disqualified Person' 'enabling Order' 'savings and Transitional Provisions' 'jurisdiction of the Tribunal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for an Enabling Order Under S 28 of the Child Protection (working With Children) Act 2012 (nsw) / Procedural Ruling on Jurisdiction, Determined on the Papers

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to hear and determine the applicant's application for an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (NSW)." 'Whether s 26, as amended by cl 30 of Schedule 2 of the Child Protection Legislation Amendment Act 2015 (NSW), applied to the applicant.' "Whether the applicant's application for a working with children check clearance had been withdrawn or finally determined before commencement of the amended s 26 for the purposes of cl 19 of Schedule 3 of the WWC Act."]

Ratio Decidendi

The amended s 26 did not apply to the applicant because, on the proper construction of cl 19(1), an application for a working with children check clearance is not necessarily finally determined merely when the Children's Guardian refuses it. Where a person has an existing right under Part 4 to seek review or an enabling order and that right remains on foot, final determination depends on whether that right is exercised; if it is exercised, the clearance application is not finally determined until the Tribunal determines the Part 4 application. The applicant had an existing right to bring an application under Part 4 immediately before commencement of the amended s 26, so the former s 26...

Court Disposition

The Tribunal found that it had jurisdiction to hear and determine the applicant's application and listed the matter for directions.

Orders

  • ["The Tribunal has jurisdiction to hear and determine the applicant's application." "The applicant's application is listed for Direction on 8 December 2016, at 11 am."]