Chief Executive Officer, Department for Child Protection and Family Support v Igr

(2019) 54 WAR 222; [2019] WASCA 20

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Tribunals
3. › State Administrative Tribunal (WA)
4. › Review of decision
5. › Working with children assessment
6. › Whether Tribunal adequately performed statutory evaluative task
7. › Whether adequate reasons given
8. › Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(5), s 12(8)
1. Administrative Law
2. › Reasons for decision
3. › Adequacy of reasons
4. › Tribunal required to disclose intellectual process
5. › Whether finding of decisive significance could be implied from reasons
6. › Whether reasons disclosed path of reasoning to ultimate conclusion
1. Children
2. › Protection of children
3. › Working with children permits
4. › Non-conviction charges
5. › Unacceptable risk test
6. › Three categories of finding available to decision-maker
7. › Whether positive finding that alleged conduct did or did not occur
8. › Whether no positive finding possible
9. › Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 12(5), s 12(8)

Quick Take

When assessing unacceptable risk under s 12(5) of the Working with Children (Criminal Record Checking) Act 2004 (WA) in non-conviction charge cases, the decision-maker may make a positive finding that the alleged conduct occurred, a positive finding that it did not occur, or conclude that no positive finding can be made either way. Only in the third category must the decision-maker proceed to analyse and evaluate risk factors including the strength of the case and likelihood of future risk. A finding of decisive significance — such as that the alleged conduct did not occur — must be expressed and cannot be left to implication. Where no such finding is made, the decision-maker must demonstrate in its reasons that it performed the statutory evaluative task.