CLL v Children’s Guardian [2017] NSWCATAD 69

CLL v Children’s Guardian [2017] NSWCATAD 69

The Tribunal affirmed the refusal because, although it was not satisfied on the balance of probabilities that CLL knowingly possessed the images that formed the dismissed charge, it retained a lingering doubt that he did so and was satisfied that he accessed and sought access to internet sites that a reasonable person would assume were likely to contain pornographic material related to children. Given the paramount consideration of child safety, the seriousness of conduct involving child pornography, the Applicant's limited explanation and lack of expert evidence or evidence of changed circumstances, the Tribunal was satisfied on balance that CLL posed a real and appreciable risk of harm...

Jurisdiction
Australia
Judgment Date
08 March 2017
Procedural Posture
Administrative Review of Refusal to Grant a Working With Children Check Clearance / Decision on Application for Review Under S 27 of the Child Protection (working With Children) Act 2012
Outcome
The decision of the Children's Guardian to refuse to grant the Applicant a Working With Children Check Clearance was affirmed.
Legal Topics
['working With Children Check Clearance' 'risk Assessment' 'protective Jurisdiction' 'safety, Welfare and Well Being of Children' 'child Pornography' 'dismissed Criminal Charge' 'procedural Fairness and Admission of Evidence' 'balance of Probabilities' 'real and Appreciable Risk']
['administrative Law' 'child Protection' 'working With Children Checks'] ['working With Children Check Clearance' 'risk Assessment' 'protective Jurisdiction' 'safety, Welfare and Well Being of Children' 'child Pornography' 'dismissed Criminal Charge' 'procedural Fairness and Admission of Evidence' 'balance of Probabilities' 'real and Appreciable Risk']

Case Brief

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Procedural Posture

Administrative Review of Refusal to Grant a Working With Children Check Clearance / Decision on Application for Review Under S 27 of the Child Protection (working With Children) Act 2012

Legal Issues

  1. 1 ["Whether the decision of the Children's Guardian to refuse to grant the Applicant a Working With Children Check Clearance should be affirmed." 'Whether the Applicant poses a risk to the safety of children within the meaning of s 18(2) of the Child Protection (Working with Children) Act 2012.' 'How the Tribunal should assess the dismissed charge of possession of child pornography and surrounding circumstances, including emails and subscriptions to websites.' "Whether disputed material including the electronics expert's statement, police material and AFP material should be admitted and what weight should be given to it." "Whether a lingering doubt or suspicion about the Applicant's conduct, together with all other material, supported a finding of risk."]

Ratio Decidendi

The Tribunal affirmed the refusal because, although it was not satisfied on the balance of probabilities that CLL knowingly possessed the images that formed the dismissed charge, it retained a lingering doubt that he did so and was satisfied that he accessed and sought access to internet sites that a reasonable person would assume were likely to contain pornographic material related to children. Given the paramount consideration of child safety, the seriousness of conduct involving child pornography, the Applicant's limited explanation and lack of expert evidence or evidence of changed circumstances, the Tribunal was satisfied on balance that CLL posed a real and appreciable risk of harm...

Court Disposition

The decision of the Children's Guardian to refuse to grant the Applicant a Working With Children Check Clearance was affirmed.

Orders

  • ["The decision of the Children's Guardian to refuse to grant the Applicant a Working With Children Check Clearance is affirmed." 'Disclosure of the name of the Applicant and of any alleged victim or child is prohibited.']