CJT v Office of the Children’s Guardian

1. [1]

   THE COURT: The applicant seeks leave to appeal from a decision of a Judge of the Common Law Division (Fullerton J). [1] Her Honour dismissed the applicant’s appeal on a question of law from a decision of the New South Wales Civil and Administrative Tribunal (NCAT). [2] In that decision [3] the Administrative and Equal Opportunity Division of NCAT, constituted by a Senior Member, affirmed a decision of the Children’s Guardian [4] to refuse the applicant’s application under s 13(1) of the Child Protection (Working with Children) Act 2012 (NSW) (Act) for a “working with children check clearance” (Clearance).

2. [2]

   The applicant requires leave to appeal because (relevantly) the judgment or order he challenges does not involve a matter at issue amounting to or of the value of $100,000 or more. [5] The respondent to the application (Children’s Guardian) opposes the grant of leave.

3. [3]

   The applicant was not legally represented at the hearing. However, his wife was given leave to make submissions on his behalf.

4. [4]

   At the conclusion of the hearing, the Court announced that it proposed to grant leave to appeal on two limited issues. The Court indicated that it would not make formal orders at that time, but would do so when delivering reasons for judgment. These are the reasons.

Background

1. [5]

   Section 8(1) of the Act prohibits a person from engaging in “child-related work” [6] unless that person holds a Clearance [7] or has made an application for the issue of a Clearance.

2. [6]

   By an application dated 13 May 2014, the applicant applied for a Clearance. The applicant stated that he intended to work with children in a volunteer capacity in a community-based organisation affiliated with his church. At that time, the applicant was the subject of criminal charges arising from complaints made by his former partner. There is no dispute that, as the primary Judge recorded, these charges alleged offences contrary to ss 61I (sexual assault), 61J (aggravated sexual assault) and 61N (act of indecency) of the Crimes Act 1900 (NSW) (Crimes Act).

3. [7]

   The applicant was committed for trial in the District Court on each of the charges, with the trial due to commence on 13 November 2014.

4. [8]

   On 17 July 2014, the Children’s Guardian advised the applicant that he was a “disqualified person” within the meaning of s 18(1)(b) of the Act because he was a person against whom proceedings for offences specified in Sch 2 of the Act had been commenced and the proceedings were still pending. [8] Accordingly, s 18(1) prevented the Children’s Guardian from granting the applicant a Clearance.

5. [9]

   As has been noted, the applicant’s trial was listed to commence in the District Court on 13 November 2014. It appears that prior to the trial the complainant advised the Crown that she was not willing to give evidence. As a consequence, a nolle prosequi was entered in respect of each of the three charges against the applicant. Once the criminal proceedings were terminated, the applicant was no longer a “disqualified person” within the definition in s 18(1) of the Act.

The Children’s Guardian’s risk assessment

1. [10]

   Despite the absence of a conviction, the Children’s Guardian advised the applicant that he would be subject to a risk assessment before his application for a Clearance could be finally determined. It appears that the Children’s Guardian took the view that the applicant was a person “subject to an assessment requirement” by reason of s 14 and cl 1(1)(b) of Sch 1 of the Act. [9]

2. [11]

   On 23 March 2015, the Children’s Guardian notified the applicant that it had completed the risk assessment and proposed to refuse his application for a Clearance.

The NCAT Decision

1. [12]

   On 2 April 2015, the applicant applied to NCAT pursuant to s 27(1) of the Act for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). NCAT published its reasons on 24 November 2015 for rejecting the applicant’s application for review.

2. [13]

   The Senior Member concluded that he was unable to make a positive finding that the criminal allegations had been proved to a civil standard. In his view, whether the events occurred as alleged “remain[ed] open”. [10] But he found that “the existence of a real and appreciable risk ha[d] not been disproven” [11] and that, on the evidence, the applicant posed “a real and appreciable risk to the safety of children”. [12] The Senior Member also stated that: [13]

3. [14]

   The applicant relied on numerous grounds of appeal before the primary Judge, not all of which raised questions of law. However, he did contend that neither the Children’s Guardian nor NCAT had jurisdiction to undertake a risk assessment because the charges against him had been terminated without proceeding to a trial. It does not appear that the primary Judge specifically addressed this contention.

4. [15]

   On a generous reading of the applicant’s submissions before the primary Judge, he also argued that the Senior Member did not apply the correct statutory criterion in determining that the applicant posed a risk to the safety of children. The primary Judge concluded that NCAT had applied the correct test.

5. [16]

   Whether the Children’s Guardian and NCAT had jurisdiction to conduct a risk assessment depends on whether the applicant was a person subject to an assessment requirement within the meaning of s 14 of the Act. The answer to that question in turn depends upon whether the terms of cl 1(1)(b) of Sch 1 were satisfied: that is, whether proceedings had been commenced against the applicant for an offence in cl 1 of Sch 2 to the Act and the applicant was not because of those proceedings a disqualified person. [15]

6. [17]

   Ms Mahony, who appeared for the Children’s Guardian, submitted that cl 1(1)(b) of Sch 1 applies to a person against whom criminal proceedings for relevant offences have been commenced, but where the proceedings have been terminated by the entering of a nolle prosequi. This submission has some force but it appears that cl 1(1)(b) of Sch 1 may give rise to some questions of construction. There is a public interest in this Court addressing any such questions that arise in the present case.

7. [18]

   Ms Mahony accepted that NCAT, in carrying out its review function, was bound to apply s 18(2) of the Act, which provides as follows:

8. [19]

   There is no substance to any of the other issues raised by the applicant in support of the application for leave to appeal.

9. [20]

   The Court makes the following orders: