AB v Commission for Children and Young People

[2001] NSWADT 170

CITATION:	AB -v- Commission for Children and Young People [2001] NSWADT 170
DIVISION:	Community Services Division
PARTIES:	APPLICANT AB RESPONDENT Commission for Children and Young People
FILE NUMBER:	014048
HEARING DATES:	25/09/2001
SUBMISSIONS CLOSED:	09/25/2001
DATE OF DECISION:	10/18/2001
BEFORE:	Gormly P - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:
REPRESENTATION:	APPLICANT J Peluso, barrister RESPONDENT M Adofaci, advocate
ORDERS:	The Child Protection (Prohibited Employment) Act 1998 does not apply to AB in respect of the offence of "carnal knowledge of a girl under 16 years" for which he was convicted on 15 June 2001.

Introduction
1 In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. (Administrative Decisions Tribunal Act 1997 s 126(1).

2 Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we have decided, because of the sensitivity of the information in this case, not to publish the applicant's name and to delete any other information which could lead to his identification. In these reasons we refer to the applicant as "AB." The official copy of the orders provided to the parties includes the name of the applicant.

3 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the CP(PE) Act) is not to apply to AB in respect of the offence of carnal knowledge of a girl under 16 years of which he was convicted on 15 June 2001.

Legislative provisions

4 In summary, the Act makes it an offence for people convicted of "serious sex offences" to apply for or undertake "child related employment." The Act also makes it an offence for employers to do certain things in relation to a person convicted of such an offence. However, the Tribunal can make a declaration that the Act is not to apply to a person in relation to a specified offence. Further details are set out below.

5 Subject to certain defences and transitional provisions, the CP (PE) Act makes it an offence for a person convicted of a " serious sex offence" (as defined in s 5(3)) from applying for, undertaking or remaining in child-related employment.

Section 6(1) states that:

A prohibited person must not:
(a) apply for child-related employment, or
(b) undertake child-related employment, or
(c) remain in child-related employment.
Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both.
(2) Defence
It is a defence to a prosecution for an offence against this section if the defendant establishes that he or she did not know, at the time of the commission of the offence, that the employment concerned was child-related employment.

6 A "prohibited person" is defined in s 5 of the Act. That section states that:
(1) For the purposes of this Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of this subsection.
(2) For the purposes of this Act, a person is not a prohibited person in respect of an offence if an order in force under section 9 declares that this Act is not to apply to the person in respect of the offence.

7 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) as follows:
3) In this section: serious sex offence means (subject to subsections (4) and (5)):

(a) an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or
(b) an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been.......committed in New South Wales, or
(c) an offence under sections 91D 91G of the Crimes Act 1900 (other than if committed by a child prostitute) or a similar offence under a law other than a law of New South Wales, or
(d) an offence under section 578B or 578C (2A) of the Crimes Act 1900 or a similar offence under a law other than a law of New South Wales, or
(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs, or
(f) any other offence, whether under the law of New South Wales or elsewhere, prescribed by the regulations.
(4) An offence that was a serious sex offence at the time of its commission is not a serious sex offence for the purposes of this Act if the conduct constituting the offence has ceased to be an offence in New South Wales.
(5) An offence involving sexual activity or an act of indecency is not a serious sex offence for the purposes of this Act if the conduct constituting the offence:
(a) occurred in a public place, and
(b) would not have constituted an offence in New South Wales if the place were not a public place.
8 "Child" and "Child-related employment" are defined in s 3:
In this Act:
child means a person who is under 18 years of age.
child-related employment:
(a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised:
(i) employment involving the provision of child protection services,
(ii) employment in pre-schools, kindergartens and child care centres (including residential child care centres),
(iii) employment in schools or other educational institutions (not being universities),
(iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987),
(v) employment in refuges used by children,
(vi) employment in wards of public or private hospitals in which children are patients,
(vii) employment in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement,
(viii) employment in any religious organisation,
(ix) employment in entertainment venues where the clientele is primarily children,
(x) employment as a babysitter or childminder that is arranged by a commercial agency, (xi) employment involving fostering or other child care,
(xii) employment involving regular provision of taxi services for the transport of children with a disability,
(xiii) employment involving the private tuition of children,
(xiv) employment involving the direct provision of child health services,
(xv) employment involving the provision of counselling or other support services for children,
(xvi) employment on school buses,
(xvii) employment at overnight camps for children, and
(b) includes any other employment of a kind prescribed by the regulations, but does not include any employment of a kind excluded by the regulations.
9 "Employment" is defined in s 3 as follows:
employment means (subject to the regulations):
(a) performance of work under a contract of employment, or
(b) performance of work as a self-employed person or as a subcontractor,
or
(c) performance of work as a volunteer for an organisation, or
(d) undertaking practical training as part of an educational or vocational course, or
(e) performance of work as a minister of religion or other member of a religious organisation.
10 Subject to certain transitional provisions, the Act also makes it an offence for an employer to do certain things including knowingly employing a prohibited person in child related employment. Section 8(1) states that:
An employer must not commence employing, or continue to employ, in child-related employment a person that the employer knows is a prohibited person.
Maximum penalty: 100 penalty units, in the case of a corporation, and 50 penalty units in any other case.

11 Section 9 of the CP (PE) Act allows the Tribunal to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that sections states that:
(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.
(2) A relevant tribunal is:

(a) the Industrial Relations Commission, or
(b) the Administrative Decisions Tribunal.
(4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.
(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(b) the age of the person at the time those offences were committed,
(c) the age of each victim of the offences at the time they were committed,
(d) the difference in age between the prohibited person and each such victim,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.
(6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.
(7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.
(8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal.
(9) Orders under this section may be made subject to conditions.
(10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order.

Evidence

12 Applicant’s exhibits
Exh 1-Reference of D P dated 4 September no year
Exh 2-Letter from K K dated 14 September 2001
Undated reference of W G
Undated reference of W B
Reference P G dated 1.5.2001
Undated reference E M B

13 Respondent's exhibits
Exh A-2 Court documents re sentencing & bond dated 15.6.01
Facts on sentence of Newcastle District Court
Probation and Parole Pre-sentence report dated 23 May 2001
Indictment presented by Director of Public Prosecutions
Statement of S M C 22 October 1998
Statement of S M C 31 March 2000
Record of interview by Detective Sergeant DJ Woolnough of AB dated 10 October 2000

Reasons and decision

14 AB was born 26 August 1965. He was14 to 15 years at the time of the offence which occurred in 1980. The victim was 12 to 13 years at the time of the offence. She maintains she was not a willing partner to the act of sexual intercourse. AB maintained in his defence that she was. Another man was convicted with regard the same night and the same victim. It is unnecessary to relay the factual situation of the offence. AB was convicted of carnal knowledge of a female under 16 years and was placed on a good behaviour bond for 12 months. I am informed by Mr Peluso that the severity is being appealed from. AB is seeking a no conviction pursuant to s10 of the Crimes Act.

15 The crime was committed in 1980. The matter was not reported to the police until the victim’s husband found out about the incident on 22 October 1998. AB was not interviewed by Police until 10 October 2000. On 5 December 2000 AB pleaded guilty. In June 2001 Coleman J in District Court sentenced AB with the 12 months good behaviour bond.

16 AB has no other matters on his criminal record. He is happily married and his wife who was present at the Tribunal is supportive. They have two small boys aged 9 and 6 years. AB is in full time employment. This employment is not affected by his categorisation under the Act however he is an involved father and in the past has been involved with their activities, in particular their sport. He wishes to remain involved.

17 When considering the matters required pursuant to s9 of the Act the Tribunal considers the offence to be very serious. That the victim and AB were 3-4 years apart in age; both teenagers; AB is in full time employment; happily married with two children with whom he is involved and that AB has a clear criminal record apart from the offences in question is the basis for the tribunals decision that AB does not pose a threat to the safety of children.

Order

18 This Act is not to apply to AB in respect of the offence of carnal knowledge of a female under 16 years, for which he was convicted on 15 June 2001.