Australia, June 3 -- New South Wales Land and Environment Court issued text of the following judgement on May 5:

1. On 7 December 2023, the applicant was issued with a prohibition notice ("the Decision") by a delegate of the Secretary of the Department of Education, New South Wales, under section 182 of the Children (Education and Care Services) National Law ("National Law"). Pursuant to s 193(1) of the National Law, the applicant seeks an administrative review of the Decision. The basis for the Decision was that there may be an unacceptable risk of harm posed by the applicant to children.

2. On 4 September 2023, the applicant performed three hours of a student placement course at an early childhood education centre. The applicant has a working with children clearance.

3. One of the parents of a child receiving education at the early childhood education centre was a principal at a school. This parent, as a consequence of her position had access to confidential information as to persons listed on a "Not To Be Employed List" ("NTBE List") made by the NSW Department of Education. This parent recognised GDB as a person listed on the "Not To Be Employed List" and notified the early childhood education centre, who contacted the respondent. The parent also stated in the communication to the early childhood education centre that the applicant had been "raided for child pornography".

4. In April 2013, the applicant was charged with four counts of possession of child abuse material. The charges came about as a result of a disclosure made by the applicant that he was sent the child abuse material in 2004 when he was eighteen years old when he joined an online chat group for homosexual men. Before the Tribunal there was extensive material about the charges, the criminal proceeding, the disclosure, applicant's health records, medical reports, employment records and numerous related legal claims.

5. The applicant was placed on the NTBE List in 2020 for reasons unrelated to the possession of child abuse material. The reason for the applicant being placed on the NTBE List, given in the Decision was "following performance concerns and associated complaints that were subject to determinations by external review bodies." What exactly this means is explained further in the decision.

The Law

6. The objectives and guiding principles of the National Law are contained in s 3:

(2) The objectives of the national education and care services quality framework are-

(a) to ensure the safety, health and wellbeing of children attending education and care services;

(3)The guiding principles of the national education and care services quality framework are as follows-

(a) that the rights and best interests of the child are paramount;...

7. An entity with functions under the National Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services framework (s 4). The respondent has been declared to be the Regulatory Authority for NSW for the purpose of the National Law; s 9 Children (Education and Care Services) National Law Application Act 2010 (NSW). Section 9 of the National Law Application Act recognised this Tribunal to be the relevant tribunal or court for the purposes of Part 8 of the National Law.

8. Division 3 of the National Law sets out prohibition notices. Section 182 sets out the grounds for giving a prohibition notice:

The Regulatory Authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed-

(a) to remain on the education and care service premises; or

(b) to provide education and care to children.

9. Section 63 of the Administrative Decisions Review Act 1997 provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19688d1766ce1d43bc46e157)

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