EFY v Children's Guardian

The written submissions of the applicant

1. In a statement attached to his application for an enabling order lodged on 11 March 2020, titled 'Grounds for Application', the applicant states that: I recently applied to NCAT for an enabling order under section 28 of the Child Protection Act 2012. The judge ruled that I was not entitled to apply for the order as I was not someone who has previously been "refused a clearance" but instead was someone who had had their clearance cancelled. The judge also rules that there was nothing in Section 13A of the Act that precluded me from making an early application to the Children's Guardian for a Working with Children Clearance as I provided evidence that there had been a "change of circumstances". I have since made an early application under Section 13A to the Children's Guardian for a clearance providing evidence of "a change in circumstances". That application for a clearance has been refused (see attached). Since I have now been "refused a clearance" then according to Section 28 I am now entitled to apply for an enabling order.
2. In his submission dated 8 April 2020, the applicant asserts that he applied for an early WWCC clearance based on a statement made in the Reasons for Decision of the Tribunal issued on 22 January 2020 that he would, if he was not entitled to apply for an enabling order, be eligible to apply to the Children's Guardian for a clearance.
3. The applicant argues that the Children's Guardian has wrongly refused to permit his early application for a WWCC clearance by not recognising he has had a 'change of circumstance'. He asserts that there has been a change of circumstances on two bases. Firstly, because the Children's Guardian's barrister conceded that he had not 'crossed professional boundaries' and secondly, because there had been 'no sexual misconduct'.
4. On 7 May 2020 the applicant lodged further lengthy submissions. He set out the history to the matter and responded to the written submissions of the Children's Guardian dated 24 April 2020. He asserted that his: …basis for being able to apply is that he does not satisfy s26(1) and s26(2), that is, he is not prohibited by s26 from making an application, and he is an ineligible person because he has been refused a clearance (s28(2)). At paragraph 18 of his submission the applicant states that he is not relying on "section 13 2 (c) or 2 (d)" as a basis for being able to apply for an enabling order. It is assumed that he is referring to ss 13A (2) (c) or (d) of the Act.
5. The applicant argued that he is not a 'disqualified person', that the Act states that the Children's Guardian must grant a clearance to a person who is not a 'disqualified person', and that the only obstacle to prevent him obtaining a WWCC clearance is the Children's Guardian's decision not to allow an early application. He asserts that a refusal to allow an early application is a refusal to grant him a clearance.
6. The applicant submits that as a result of being "refused a clearance" he is entitled to apply for an enabling order pursuant to s 28 of the Act.

The written submissions of the respondent

1. On 24 April 2020 the Tribunal received written submissions from Counsel for the Children's Guardian. In those submissions it is argued that the application lodged on 11 March 2020 requesting a review of the decision of the Children's Guardian on 16 October 2015 should be dismissed because the Tribunal has already conducted a review of that decision and dismissed it, and the decision was then appealed to the Supreme Court which also dismissed the appeal.
2. The respondent's submissions include that there is no provision in the Act, nor in the Administrative Decisions Review Act 1997 (NSW) (ADR Act), permitting a further review of the decision by the respondent to cancel the applicant's WWCC clearance.
3. The respondent also argues that: … the present application is for review of a decision that has already been reviewed, and therefore is incompetent, beyond the jurisdiction of the Tribunal, and misconceived and should be dismissed pursuant to par.55 (1) (b) of the Civil and Administrative Tribunal Act 2013…
4. Counsel then considers the possibility that the applicant may have intended to request a review of the decision of the Children's Guardian made on 10 March 2020 and responds to a hypothetical amended or fresh application lodged by the applicant seeking such a review.
5. The respondent's submissions then set out the reasons why such an application would also fail. It is argued that the Tribunal does not have jurisdiction to review decisions under s 13A (2) (d) of the Act or 'expressions of opinion about a person's standing' under s 13A (2) (c) of the Act. Counsel opines that the Children's Guardian's opinion in relation to s 13A (2) (c) of the Act is 'manifestly right' and cannot be challenged because the finding that triggered the risk assessment by the Children's Guardian was not a finding by the applicant's employer but a notification from the Ombudsman that is not covered by s 13A (2) (c) of the Act. It is argued that, furthermore, even if the finding had been made by the applicant's former employer, there is no evidence that this has changed as is required by the paragraph.
6. Counsel asserts that as a result of s 66 (1) of the ADR Act which provides that: A decision determining an application for an administrative review under this Act of an administratively reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision… the applicant is subject to a five-year embargo from reapplying for a WWCC clearance until 7 April 2021 (five years from the date of the review decision made on 8 April 2016, not from the date of the original decision by the Children's Guardian.

Consideration

1. The application lodged on 11 March 2020 by the applicant is dismissed for the reasons set out below.
2. The nub of the applicant's lengthy submissions is that he believes the refusal by the Children's Guardian to allow an early application constitutes a refusal to grant him a clearance. He asserts that as a result of being 'refused a clearance' he is able to apply for an enabling order pursuant to s 28 of the Act.
3. We agree with Counsel for the Children's Guardian that there is no provision in the CAT Act, nor in the ADR Act, that permits a further review by the Tribunal of the decision by the respondent to cancel the applicant's WWCC clearance.
4. As was noted by Senior Member Lucy in the Reasons for Decision from a previous determination of this Tribunal relating to the same applicant (ECJ v Children's Guardian [2020] NSWCATAD 28, determined on 22 January 2020): …the legislation makes a distinction between a person who has been refused a clearance and a person whose clearance has been cancelled.
5. The applicant's WWCC clearance was cancelled on 16 October 2015. He requested a review pursuant to s 27 (2) of the Act and, following a hearing on 21 January 2016, the Tribunal dismissed his application on 8 April 2016. The Supreme Court then dismissed an appeal of the Tribunal's decision. The cancellation of the applicant's WWCC clearance has already been the subject of review.
6. Under s 27(1) of the Act the Tribunal can review a decision of the Children's Guardian to refuse a clearance. 'Clearance' is defined in section 5 of the Act as 'an authorisation that is in force under this Act to engage in child-related work'.
7. We do not accept the applicant's assertion that the refusal by the Children's Guardian to allow him to lodge an early application constitutes a refusal to grant him a clearance. The refusal to allow the lodgement of an early application is simply that; it cannot be extrapolated to the meaning proposed by the applicant.
8. Although the applicant does not appear to be seeking a review of the decision made by the Children's Guardian on 10 March 2020, we have given consideration to the possibility that this was what he intended, or his position should he seek to lodge an amended or fresh application seeking such a review.
9. We agree with Counsel for the Children's Guardian that the Tribunal does not have jurisdiction to review decisions made by the Children's Guardian under ss 13A (2) (c) or (d) of the Act. The Act makes no provision for the Tribunal to conduct such a review.
10. We also agree with Counsel for the Children's Guardian that the event that triggered a risk assessment was the formal notification of concern made by the NSW Ombudsman to the Children's Guardian on 6 March 2015. Counsel opines that the Children's Guardian's opinion in relation to s 13A (2) (c) of the Act cannot be challenged because the finding that triggered the risk assessment by the Children's Guardian was the notification from the Ombudsman and that this is not covered by s 13A (2) (c) of the Act. We share Counsel's view on this issue and also accept his assertion that, even if the finding had been made by the applicant's former employer, there is no evidence before the Tribunal that this has changed as is required by the subsection.
11. We do not, however, agree with the proposition submitted by Counsel for the Children's Guardian that the five-year embargo period will expire on 7 April 2021, five years after the decision of the Tribunal when it reviewed the decision of the Children's Guardian, rather than on 15 October 2020, the date which is five years after the date the applicant's clearance was cancelled by the Children's Guardian.
12. The interpretation of the section by Counsel would, in effect, result in the applicant being penalised for seeking a review of the decision made by the Children's Guardian and that review not being determined in his favour. We do not accept that this is what is intended by s 66 (1) of the ADR Act. The section applies to a wide range of administratively reviewable decisions and allows for review bodies to specify a later date on which a decision takes effect.
13. In this matter we consider that s 66 (1) of the ADR Act means that the decision of the Tribunal to dismiss the review application brought by the applicant is effective from 8 April 2016, the date on which the Tribunal made its decision. It does not change the date on which the Children's Guardian refused the applicant a WWCC clearance (16 October 2015), which is the date from which the five year embargo period commences.
14. The applicant is eligible to reapply for a WWCC clearance after 15 October 2020.

Order

1. The order of the Tribunal is that: 1. The proceedings are dismissed pursuant to section 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW).

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: 09 July 2020