EMP v Children’s Guardian [2020] NSWCATAD 301

EMP v Children’s Guardian [2020] NSWCATAD 301

The stay was refused because granting it would not be desirable or in the public interest given the applicant's adverse workplace history, unresolved issues concerning risk to children, and serious allegations, with insufficient evidence of irreparable harm to applicant or mitigation of risk. Protection of children is paramount and outweighs applicant's private interests at this stage, and granting a stay could allow unsupervised child-related work against the protective purpose of the legislation.

Jurisdiction
Australia
Judgment Date
09 December 2020
Procedural Posture
Administrative Review / Interim Application for Stay Pending Substantive Hearing
Outcome
Stay of operation of Children's Guardian's refusal of Working With Children Check Clearance refused and dismissed; suppression order issued
Legal Topics
['stay of Decision' 'working With Children Check' 'risk Assessment' 'public Interest' 'procedural Fairness']
['administrative Law' 'child Protection'] ['stay of Decision' 'working With Children Check' 'risk Assessment' 'public Interest' 'procedural Fairness']

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Procedural Posture

Administrative Review / Interim Application for Stay Pending Substantive Hearing

Legal Issues

  1. 1 ["Whether a stay of the Children's Guardian's refusal to grant a Working with Children Check Clearance should be ordered pending final determination of review application" 'Assessment of risk to safety of children posed by applicant' 'Application of protective and public interest criteria under governing statutes']

Ratio Decidendi

The stay was refused because granting it would not be desirable or in the public interest given the applicant's adverse workplace history, unresolved issues concerning risk to children, and serious allegations, with insufficient evidence of irreparable harm to applicant or mitigation of risk. Protection of children is paramount and outweighs applicant's private interests at this stage, and granting a stay could allow unsupervised child-related work against the protective purpose of the legislation.

Court Disposition

Stay of operation of Children's Guardian's refusal of Working With Children Check Clearance refused and dismissed; suppression order issued

Orders

  • ['The application for a stay or interim order is refused and dismissed.' 'With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is...