The applicant's working with children check clearance was cancelled by the Children's Guardian less than five years ago. There is an embargo upon a person applying to the Tribunal less than five years after the cancellation of the person's clearance, except in certain circumstances.
The applicant applied to the Tribunal for an enabling order. An enabling order is an order enabling a person to work with children, where the person would otherwise be disqualified from working with children or ineligible to work with children.
The Children's Guardian applied for summary dismissal of the applicant's application.
I have found that the applicant is not a person who is entitled to apply for an enabling order. Accordingly, I have dismissed his application.
[2]
Background
The applicant was a teacher at an independent school. The school alleged that he had accessed internet sites to view pornographic images of females apparently under the age of 18 years.
The school notified the Ombudsman of its concerns and provided the Ombudsman with a report pursuant to s 25C of the Ombudsman Act 1974 (NSW).
In March 2015, the Ombudsman disclosed the school's report to the Children's Guardian.
The school determined in its "final investigation report," which is undated but was prepared in or after October 2015, that the applicant had accessed "young person pornography" and that this constituted sexualised behaviour towards and involving a class of young people that he ought to have known was unacceptable in his role as a teacher.
On 16 October 2015, the Children's Guardian notified the applicant that she had decided to cancel his working with children check clearance. The applicant sought administrative review of that decision.
The Tribunal affirmed the decision of the Children's Guardian to cancel the applicant's working with children check clearance (CFJ v Children's Guardian [2016] NSWCATAD 62).
The applicant then sought leave to appeal to the Supreme Court. The court granted leave to appeal but dismissed the appeal (CFJ v Office of the Children's Guardian [2016] NSWSC 1625).
On 5 November 2019, the applicant applied to the Tribunal for an enabling order.
The Children's Guardian applied for summary dismissal of the applicant's application.
[3]
Relevant legislative provisions
Section 13A of the Child Protection (Working with Children) Act 2012 (NSW) provides:
"13A Embargo after refusal of application or cancellation of clearance
(1) A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance -
(a) until 5 years after the date notice of the refusal or cancellation was given to the person, or
(b) unless there has been a change of circumstances under which a further early application is permitted under this section.
(2) A further early application is permitted if any of the following occurs after the date of the refusal or cancellation -
(a) proceedings that were pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence,
(b) a finding of guilt is quashed or set aside,
(c) a finding the subject of an assessment requirement is quashed or set aside or otherwise expressly or impliedly ceases to have effect,
(d) the Children's Guardian permits a person to make such an application."
The meaning of the term "assessment requirement" in s 13A(2)(c) of the Child Protection (Working with Children) Act is explained by s 14, which provides that a person is subject to an assessment requirement if any of the matters specified in Schedule 1 apply to the person.
Clauses 2 and 2A of Sch 1 to the Child Protection (Working with Children) Act provide:
"2 Findings of misconduct involving children
A person has been the subject of a finding by a reporting body that the person engaged in the following conduct -
(a) sexual misconduct committed against, with or in the presence of a child, including grooming of a child,
(b) any serious physical assault of a child.
2A Notification by Ombudsman
(1) A person has been the subject of a notification of concern to the Children's Guardian by the Ombudsman that, on a risk assessment by the Children's Guardian, the Children's Guardian may be satisfied that the person poses a risk to the safety of children.
(2) A notification of concern is a notification made by the Ombudsman as a result of concerns arising from the receipt of information by the Ombudsman in the course of exercising the Ombudsman's functions."
A "reporting body" includes an employer which is a member of the Association of Independent Schools of NSW (Child Protection (Working with Children) Act, ss 5(1), 35(4); Child Protection (Working with Children) Regulation 2013 (NSW), cl 25(k)). The applicant's employer was an independent school which was a member of the Association of Independent Schools of NSW.
Section 55(1) of the Civil and Administrative Tribunal Act 2013 (NSW) provides:
"55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings."
[4]
Submissions and hearing
The parties provided the Tribunal and each other with written submissions and evidence on the summary dismissal application, prior to the hearing. A short hearing of the respondent's summary dismissal application was held on 16 January 2020, at which the parties made further oral submissions.
[5]
Parties' submissions
The Children's Guardian submitted that, by operation of s 13A of the Child Protection (Working with Children) Act, the applicant was not entitled to make a further application for a clearance until five years after the date of the notice of cancellation, unless there had been a change of circumstances. The Children's Guardian said there had not been a change of circumstances.
The Children's Guardian also submitted that the Tribunal did not have jurisdiction to hear or determine the applicant's application because it sought a review of the decision which had already been determined by the Tribunal and upheld by the Supreme Court.
The Children's Guardian sought an order for summary dismissal, pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act, on the basis that the application was misconceived.
The applicant submitted that there had been a change of circumstances since the cancellation decision, within s 13A(2)(c) of the Child Protection (Working with Children) Act. This is because, he said, a finding the subject of an assessment requirement had been set aside or had impliedly ceased to have effect. He said that the Children's Guardian had made a finding of "crossing professional boundaries" but that, in her submissions to the Tribunal, she had conceded that the applicant had not crossed professional boundaries. The applicant further submitted, at the hearing, that he could not have crossed professional boundaries or engaged in sexual misconduct involving a child, as there was no student involved.
There was a dispute between the parties as to whether the finding of the Children's Guardian or the finding of the school (as reporting body) was the relevant "finding the subject of an assessment requirement" within s 13(2)(c) of the Child Protection (Working with Children) Act.
[6]
Is the applicant entitled to apply for an enabling order?
The first question is whether the applicant is entitled to make an application to the Tribunal, under s 28(2) of the Child Protection (Working with Children) Act, for an enabling order. The parties agreed that s 28(1) does not apply in the circumstances of this case.
Section 28(2) of the Child Protection (Working with Children) Act provides:
"(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor."
There is an issue as to whether the applicant is a person who "is not eligible to apply for a clearance." The applicant says he is so eligible, because s 13A(1) does not preclude a person from applying for a clearance if there has been a change of circumstances, and he says there has been such a change. If he is correct, s 28(2) does not apply to him and he is not entitled to apply for an enabling order. He would, however, be eligible to apply to the Children's Guardian for a clearance.
Assuming, however, that the applicant is not eligible to apply for a clearance by operation of s 13A because his clearance was cancelled less than five years ago, s 28(2) permits an application for an enabling order only by an applicant "who is not eligible to apply for a clearance because the person has been previously refused a clearance." I indicated at the hearing that my preliminary view was that the legislation makes a distinction between a person who has been refused a clearance and a person whose clearance has been cancelled. The applicant did not make any submissions which changed my view.
I consider that the word "refused" in s 28(2) refers to a person whose application to the Children's Guardian for a clearance has been declined, and does not capture a person whose clearance has been cancelled. Section 13A(1), which is cited above, refers to a person "who is refused a working with children check clearance, or whose clearance is cancelled." Section 28(3) also refers to the refusal and cancellation of a clearance as alternatives. The distinction between the two concepts is also maintained in s 26(1)(c), 27(1) and (2) of, and cl 4 of Sch 3 to, the Child Protection (Working with Children) Act.
It follows, in my view, that, as a person whose clearance was cancelled, the applicant is not entitled to make an application for an enabling order under s 28(2) of the Child Protection (Working with Children) Act.
The application should therefore be dismissed as being frivolous or vexatious or otherwise misconceived or lacking in substance within s 55(1)(b) of the Civil and Administrative Tribunal Act.
[7]
Embargo after cancellation of clearance
It is not strictly necessary for me to deal with the other issues raised by the parties, given my conclusion about the proper construction of s 28(2) of the Child Protection (Working with Children) Act. However, in case I am wrong about this, I have gone on to consider the parties' submissions as to the application of s 13A of that Act.
Section 13A(1) takes away a person's entitlement to make an application for a working with children check clearance in certain circumstances. An application under s 28(2), however, is not an application for a clearance; it is an application for an order declaring that the applicant is to be treated as a person who is eligible to apply for a clearance. Section 13A(1) therefore does not preclude the making of an application for an enabling order under s 28(2).
In the circumstances, it is not necessary for me to deal with the parties' submissions about whether an early application is permitted because a finding the subject of an assessment requirement has been quashed or set aside or has otherwise ceased to have effect.
[8]
Orders
I make the following order:
1. The proceedings are dismissed, pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 January 2020