AG v Commission for Children & Young People

[2001] NSWADT 163

Set aside by Appeal: set aside by appeal on 28 June 2002 (The Commission for Children & Young People -v 'AG'[2002] NSWSC 582)

CITATION:	AG -v- Commission for Children & Young People [2001] NSWADT 163
DIVISION:	Community Services Division
PARTIES:	APPLICANT AG RESPONDENT Commission for Children & Young People
FILE NUMBER:	014054
HEARING DATES:	29 & 30/08/2001, 06/09/2001
SUBMISSIONS CLOSED:	09/12/2001
DATE OF DECISION:	09/26/2001
BEFORE:	Britton A - 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:	A v Commission for Children and Young People and Anor [2001] NSWIRComm 194 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (147 CLR 297 Commissioner for Children and Young People v “G” & Anor [2001] NSWSC 534 Briginshaw -v- Briginshaw (1938) 60 CLR
REPRESENTATION:	APPLICANT In person RESPONDENT A C Johnson, solicitot (29 & 30/08/2001) D Ward, solicitor (06/09/2001)
ORDERS:	Declare that Mr AG is not a "prohibited person" as defined in s. 5 of the Child Protection (Prohibited Employment) Act and is entitled to engage in child-related employment free from the operation of that Act with respect to him.

1 The applicant in this matter is a 70 year old man employed by a specialist school for children suffering from disabilities (the school). In 1951 he was convicted of two counts of indecent assault on a male person. The Child Protection (Prohibited Employment) Act 1998 (Child Protection Act) makes it an offence for a person to apply for, undertake or remain in child-related employment if he or she is a “prohibited person” defined in the Child Protection Act to mean a person who has committed a “serious sex offence.”

2 On 24 August 2001 the applicant lodged an application with the Tribunal seeking a declaration that the Act not apply to him in respect of the above mentioned offences and at the same time made application for a stay pending the determination of the substantive application.

3 Section 126(1) of the Administrative Decisions Tribunal Act1997 (the Tribunal Act) makes it an offence in respect of proceedings in the Community Services Division of the Tribunal, to publish or broadcast except with the consent of the Tribunal, the name of any person mentioned in such procceedings. Although s. 126(2) contains an exception in relation to the publication of an official report of the proceedings, because of the sensitivity of this matter I have decided in this decsion not to publish the applicant’s name or that of any other person mentioned in these proceedings and not to include in this judgement any other information which could lead to the applicant’s identification. Accordingly I refer in this decsion to the applicant as “Mr AG”. The official copy of the orders provided to the parties will include the name of the applicant.

Procedural matters
4 The applicant attended these proceedings by telephone and was self-represented. The respondent was legally represented.

5 The stay application first came before me for hearing on 29 August 2001. At that hearing I deferred determining that application not being satisfied that all relevant material necessary to determine a stay was before me. Because of the age of the applicant’s convictions the respondent experienced considerable delay in obtaining relevant historical records. The matter was therefore stood over on a number of occasions until such material became available.

Relationship between s. 579 of the Crimes Act and the Child Protection Act
6 On 10 September 2001 I made orders granting a conditional stay reserving reasons for that decision. At the time of making these orders I had not had the opportunity of properly considering the implications of the decision of the Industrial Relations Commission of NSW, A v Commission for Children and Young People and Anor [2001] NSWIRComm 194 which had been handed down the day prior to this matter coming before me. The Industrial Relations Commission of NSW (IRC) shares jurisdiction with the Administrative Decisions Tribunal (ADT) in respect of the Child Protection Act. A v Commission for Children and Young People and Anor concerned an application to the IRC by a person who had committed a “serious sex offence” as defined by s. 5 of the Act. The issue for determination was the operation and interaction between s 579 of the Crimes Act and the relevant provisions of the Child Protection Act. In that decision Hungerford J determined that the applicant was not a “prohibited person” as defined in s. 5 of the Act by reason of the operation of s. 579 of the Crimes Act and accordingly the Child Protection Act did not prohibit his employment in child-related areas.

7 It is convenient at this point to set out the relevant statutory provisions. Section 6(1) of the Child Protection Act makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment. A prohibited person is defined by s 5(1) to mean a person convicted of a serious sex offence.

8 Section 5(3) defines a serious sex offence to mean (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 CrimesAct 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.
9 Section 579 of the Crimes Act 1900 provides that a conviction for an offence is to be “disregarded for all purposes whatsoever”, “be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect” and any question “may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into” providing certain conditions are met. In summary these conditions are that the person entered into a recognizance; at least fifteen years have elapsed since that recognizance was entered into; the conditions of the recognizance were observed; and, during the relevant period the person was not convicted of an offence, or a finding made that a charge had been proved against him or her.

10 Hungerford J rejected the respondent’s argument that s. 579 of the Crimes Act and the relevant provisions of the Child Protection Act were inconsistent and as such the earlier enacted Crimes Act must yield to the later enacted Child Protection Act. Nor did Hungerford J accept the respondent’s submission that s. 12(1) of the Child Protection Act which provides that that statute “prevails to the extent of any inconsistency between it and any other any other Act or law” was a complete answer to the relationship between the two (apparently) competing statutes.

11 Hungerford J took the view [at 43] that “there is nothing in the statutory scheme of the Child Protection(Prohibited Employment) Act, …to make it clearly and indisputably contradictory of s 579. Indeed, I am satisfied that “the fairer and more convenient” construction, to adopt the approach of Mason J in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (147 CLR 297 at p 321), and one which is consistent with the competing provisions, would only be for them to operate as each subject to and in empathy with the other.” He explained [at 44]:

“The very basis of the scheme in the Child Protection(Prohibited Employment) Act is the status of a person as a “prohibited person” which, in turn, is made to depend upon the person having been convicted of a serious sex offence; if there not be at any relevant time such a conviction, then, it must be the case, the person would not be a prohibited person. In other words, I see no difficulty in the operation of the statute, either as to its terms or in their implementation, in the conviction concerned being one which is only properly recognisable and effective as such. Where a conviction for an offence for some reason, such as s 579 here, is no longer truly effective in any respect then, in my view, it should not, indeed cannot, be sufficiently active or operative to be a relevant conviction for the purposes of s 5 of the Child Protection(Prohibited Employment) Act ; it has, by statute, to be disregarded and is no longer of any legal force or effect. That view of the interaction between the two provisions seems to me to be consistent with the ordinary meaning of the words used in each and as being consistent with the legislative intent thereby evinced as to both schemes. I see no ambiguity in the provisions as so understood.”

12 In dismissing the respondent’s contention that in enacting the Child Protection Act the legislature intended to override s. 579, His Honour concluded [at 52]:
“ I am satisfied that a review of the provisions of the Child Protection Act discloses nothing to suggest that the legislature intended to derogate from or otherwise affect retrospectively a right already crystallised under s 579. I am firmly of that view even if, which I do not think to be the case, the legislature intended to remove the rights accruing but not yet crystallised under s 579. To so view the matter would not only infringe the general common law principle but also that principle as enshrined in s 30(1)(b), (c) and (4)(b) of the Interpretation Act as to the protection of statutory rights and even in a situation where those rights have merely commenced to accrue under the earlier legislation in the sense of being contingent. As Gibbs J, as he then was, observed in Mathieson v Burton (1971) 124 CLR 1 at p 23, in relation to the similar provisions in s 8 (b) of the Interpretation Act of 1897 – “... does not apply where there is merely a hope or expectation that a right will be created ... but it does protect anything that may truly be described as a right, ‘although the right might fairly be called inchoate or contingent’.” In so saying, his Honour referred with approval to the general common law rules of construction as stated in Athlumney and in Maxwell.”

13 The issue before Hungerford J is on all fours with the issue raised by Mr AG’s application. Here the offences, for which Mr AG was convicted in 1950, absent any consideration of s. 579, constitute “serious sex offences” as that term is defined by the Child Protection Act. It is not in issue that s. 579 applies to Mr AG and these convictions, all relevant conditions set out in that provision having been met. These 1950 offences are the sole matters which trigger Mr AG’s status as a “prohibited person.”

14 At the conclusion of proceedings the respondent filed written submissions in relation to the application of s. 579. It was argued for the respondent that Hungerford J had erred in determining that a conviction to which s. 579 applied must be disregarded and therefore was not a relevant conviction for the purpose of s. 5 of the Child Protection Act. In essence these written submissions represented a reventilation of the respondent’s case put in A v Commission for Children and Young People and Anor.

15 As correctly pointed out for the respondent, a decision of the Industrial Relations Commission in Court Session is not binding upon the ADT. In the absence of authority of a superior court members of this Tribunal are entitled to reach their own conclusion as to the proper interpretation of the Child Protection Act. The Tribunal is not bound by the doctrine of precedence in respect of decisions of the IRC. Consequently A v Commission for Children and Young People and Anor has persuasive force only. However, in my view the principles of Tribunal comity demand that caution should be exercised before departing from an approach adopted by another court or tribunal where jurisdiction is shared. It goes without saying that principles of Tribunal comity do not require members of the ADT to apply decisions that are patently incorrect in law.

16 I note that the matter now before me has been fully argued before the IRC. Mr Justice Hungerford had the benefit of lengthy and detailed submissions from three counsel. The decision relies on a number of well-known principles of statutory interpretation. There is no obvious error of law. Having had the benefit of considering Hungerford Js’ detailed judgement I intend in this decision to adopt that approach in respect to the relationship between the two statutory provisions.

Order
17 As a consequence of this approach, Mr AG cannot be lawfully regarded as a “prohibited person” and therefore the jurisdiction of this Tribunal to make an order under s. 9 of the Child Protection Act cannot be invoked. Accordingly the application before me is otiose. This means, in short, that it is not an offence for Mr AG to remain in child-related employment. Nor is it an offence for his employer to continue to employ him. Accordingly to clarify the position of Mr AG I make the following revised orders:

Declare that Mr AG is not a “prohibited person” as defined in s. 5 of the Child Protection (Prohibited Employment) Act and is entitled to engage in child-related employment free from the operation of that Act with respect to him.

18 Before leaving this issue it is a matter of some concern that the respondent’s legal representatives failed in these proceedings to appraise the Tribunal of the decision in A v Commission for Children and Young People and Anor which came before the IRC for hearing in March this year. As previously noted that decision was handed down the day prior to the commencement of proceedings in respect of Mr AG’s stay application. Written submissions on the application of s. 579 were only provided to the Tribunal when at the close of these proceedings the applicant raised the so-called s. 579 defence. I am especially troubled by this situation given that the applicant was without the benefit of legal representation. Legal representatives have a clear duty to place all relevant material before a court or tribunal irrespective of whether such material will assist their case.

19 The issues raised by the interaction of s. 579 of the Crimes Act and the Child Protection Act remain live issues. The respondent advises the Tribunal that an appeal in respect of A v Commission for Children and Young People and Anor is being considered. If it transpires that Hungerford J was in error (and consequently my conclusion in respect of Mr AG’s application is wrong) and, as the stay application was fully argued before me, I set out my reasons for granting a conditional stay.

Reasons
Relevant legislative provisions
20 Section 9(1) of the Act allows the Tribunal, on the application of a prohibited person, to declare that the Act does not apply to that person in respect of a specified offence.

21 Section 9(4) and 9(5) set out the tests to be applied by the Tribunal when making an order under this section. These provisions state:

(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.
22 Pursuant to s. 9(9), an order may be made subject to conditions.

23 Section 9 (6) allows the Tribunal on application to stay the operation of a prohibition under the Act : “… the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.”

Principles to apply in determination of stay application
24 The Act does not expressly state what matters are to be taken into account in the determination of an application for a stay made under s. 9(6) of the Act. This raises the question whether the Tribunal in determining a stay is to have regard to the matters raised in s. 9(5) and s. 9(6) as it must when determining an application for a final order under s. 9(1) of the Act. In my view the matters set out in s. 9(4) and s. 9(5) are relevant to the determination of a stay application. Section 9(4) provides that the Tribunal is not to make an order under this section [my emphasis] unless it considers that the person the subject of the proposed order does not pose a risk to children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account in deciding whether or not to make an order under this section. A stay order is an order made under s. 9 of the Act therefore it follows that the reference to “an order under this section” embraces both stay and final orders. This approach is consistent with that taken by Barr J in Commissioner for Children and Young People v “G” & Anor [2001] NSWSC 534 (21 June 2001).

25 What additional issues, if any, are to apply when determining a stay application? Section 60 of the Tribunal Act lists factors to be taken account where a party seeks a stay (or some other order) in respect of a reviewable decision. That section relevantly provides:

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:
(a) the interests of any persons who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c) the public interest.
26 While, as is self evident, an application made under s 9(6) is not an application for a stay of a reviewable decision but an application for a stay of the operation of Part 2 of the Child Protection Act, in my view s. 60 of the Tribunal Act provides useful guidance on the range of matters to be taken into account. (See for example the comments of Deputy President Hennessy in G v Commissioner, NSW Commission for Children and Young People [2000] NSWADT 180 [at 15-16])

Evidence
27 The documents before me in this matter include the applicant’s criminal history; a copy of police statements taken at the time of the offence and various court documents; a record of a telephone conversation between the solicitor representing the respondent, and the principal of the school at which the applicant is employed; various character testimonials and references tendered by the applicant; a report issued by the NSW Department of Community Services (DoCS). The respondent advised that it had been unable to locate a transcript of the court proceedings relating to the offences.

28 On the first day of hearing the applicant gave evidence about the offences of sexual assault for which he was convicted in 1951. He said he had only a vague recollection of these events as they occurred so long ago. He said the offence involved a young boy who used to visit him at his place of work. According to him the offence involved taking the boy to an isolated area at the back of his work premises where he touched the boy “on his private parts.” He could not recall whether he removed the boy’s clothing. He said he thought the incident happened on only one occasion but could not be sure. He claimed not to have had, or attempted to have, sexual intercourse with the boy. He said he knew what he did was wrong and was deeply ashamed.

29 The police statements of both the victim and the applicant given at the time of the offence were tendered in evidence. The victim in his statement estimated that on about thirteen occasions the applicant took him “out back” and masturbated him; the applicant told him not to talk to anybody.

30 The applicant’s statement to the police was broadly consistent with that given by the boy. He stated that the incidents occurred over a period of about six months.

31 The applicant is currently employed to escort a young boy to and from school on a twelve-seater bus operated by the school. Mr AG estimates the boy to be about 12 years of age. His charge suffers from epilepsy and is unable to communicate through language. About six other students take the bus.

32 According to the principal of the school the driver of the bus is very experienced and has worked for the school for some years. He has can see the whole of the interior of the bus from his rear vision mirror and has a high level of awareness of what is happening on the bus. If one of the children were to become disruptive he would stop the bus.

33 According to the applicant other adults sometimes travel on the bus to act as escorts for individual children with special needs. The principal states that the boy for which Mr AG is responsible sits on the bus next to another child and Mr AG sits directly behind the two.

34 The applicant gave evidence that he had held his current position for about a month. He last worked during the Olympics and had found it hard to get work since then. In his current position he earns about $54 a day. He claims he would be “battling without this money”. Both he and his wife receive a pension, his a part pension. He has a 32 year old son who suffers from autism and lives at home. According to the applicant he was unsure what financial contribution, if any, his son made to the family, he left that to his wife.

35 He says he enjoys his position and feels that because of his experience of caring for a child with a disability he is well placed to assist other children who suffer from disabilities. He has been happily married for 38 years.

Applicant's submissions
36 The applicant submits that a stay should be granted because first, the income generated was important to his family; second the offences for which he has been convicted were one-off incidents for which he is now deeply ashamed; third he has not re-offended or done anything which could be said to pose a risk to children.

Respondent's submissions
37 The respondent opposed the granting of the stay and proposed a number of conditions in the event the Tribunal proceeded to grant the application. In support of this submission the respondent argued first, that a number of material inconsistencies emerged between the applicant’s evidence and the historical documentary evidence concerning the offence; second, the offences for which Mr AG was charged involved a young child and as such must be regarded as being at the serious end of the scale; third, the children in the applicant’s care suffer from intellectual disabilities and as such are especially vulnerable; fourth, there is no direct adult supervision of Mr AG. In short the respondent contends that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

Onus of Proof
38 In determining whether the applicant does pose a relevant risk to children I have applied the civil standard of proof. However I have taken into account the gravity of the matter to be determined: see the remarks of Dixon J in Briginshaw -v- Briginshaw (1938) 60 CLR at 361-362.

Findings and Conclusions
39 As was revealed by the production of the contemporaneous court and police records relating to the applicant’s offences, there are significant inconsistencies between those records and the applicant’s account of the assaults given in these proceedings. Relevantly in his evidence before this Tribunal the applicant understated both the seriousness and frequency of the assaults.

40 The truthfulness of an applicant’s account of his/her criminal history in my view is of critical importance in proceedings in respect of a stay application made under the Child Protection Act. As a general rule a stay application must be determined as soon as possible after being lodged with the Tribunal as to do otherwise would render the application of little utility. However in practice this can mean that the Tribunal does not have the benefit of certain relevant material that may later become available when the matter proceeds to final hearing. In that environment the veracity of an applicant’s often unsupported oral evidence given in the course of the stay hearing, takes on great importance.

41 Candor in the context of proceedings under the Child Protection Act is also important as it may indicate whether the applicant has gained some insight into the conduct which gave rise to his/ her conviction for a “serious sex offence” which in turn may assist the Tribunal in determining whether the applicant continues to represent a risk to the safety of children. Importantly candor allows the Tribunal to accept with some comfort the claim typically made by applicants in these proceedings that they are genuinely contrite for the offence/s for which they were convicted and have not and will not re-offend.

42 Half a century has now passed since the applicant who is now seventy-years of age was convicted for the offences of indecent assault. In giving evidence Mr AG did not have the benefit of contemporaneous records to assist with his recollection of events. While I am troubled by aspects of Mr AG’s account of the assaults which downplayed their severity and incidence, in the circumstances of this case I am not prepared to find that of itself Mr AG’s faulty recollection indicates that he does not appreciate the gravity of his conduct or that his evidence taken as a whole is unreliable. In all other respects the applicant impressed me as a forthright witness. It is to be expected that with the passage of some fifty years a witness’ recollection of events will be something less than accurate.

43 I turn now to consider the specific matters set out in s 9(5) required to be taken into account in determining whether the applicant poses a risk to children.

44 Seriousness of the offences The conduct for which the applicant was convicted was serious both in terms of the nature of the offence and its frequency. It cannot readily be dismissed as a one-off aberration but the conduct was repeated over a six month period. While in my view the sexual assault of a nine year old child in whatever form that assault may take must be seen as being at the serious end of the scale I note that here no violence was involved and intercourse not attempted.

45 Ages and age difference At the time of the offence the applicant was ten years older than his victim, he being nineteen, and the victim nine years of age. The offence the sexual assault ofa child, the very conduct the concern of the Child Protection Act. The inescapable conclusion from the age difference of the parties is that the applicant abused his position of power and breached his relationship of trust with the boy.

46 Criminal record Mr AG’s criminal record reveals that the only offences for which he has been convicted are those that gave rise to his application before the Tribunal.

47 While s. 9(5) commands the Tribunal to have regard to the offences which caused the applicant to become a “prohibited person”, it does not follow that because a person has committed a “serious sex offence” the Tribunal must find that the applicant represents a risk to children. If this were the case then the Tribunal’s discretion to declare that the Act is not to apply to a person convicted of a “serious sex offence” would be at best illusory. In my view the Act makes clear that while the nature and seriousness of the offence are highly relevant factors, the conduct which gave rise to the conviction is relevant but not determinative.

48 In my view the applicant’s unblemished criminal record after the 1951 convictions carries great weight. The DoCS’ report filed by the respondent reveals that no adverse notifications have been made in respect of the applicant. I have before me a number of testimonials, which, while not acknowledging the offences for which the applicant was convicted, indicate that he commands respect within the community and is held in high regard by his employers. In short there is no evidence before me to suggest that the applicant has been involved in any improper conduct involving children since 1951. The passage of half century since the offence occurred without any report or conviction for improper conduct involving children provides a strong basis for finding that the applicant is reformed and no longer poses a relevant risk to children.

49 I have given close consideration to the submissions made by the respondent who opposes the stay. The respondent’s argument that the children with whom the applicant works are especially vulnerable because of their intellectual disability and limited verbal skills holds considerable weight. It is for this reason that I deferred making any decision until the DoCS’ report became available.

50 I do not accept however the respondent’s argument that the applicant has not demonstrated any need for a stay as he has only held his current position for a few weeks; was unemployed for a significant period before that; and in any event receives a government pension and possibly some supplementary income from his disabled son. The concept of “need” in stay proceedings is highly subjective. Here while the applicant may not be reduced to penury if the stay is not granted I note that he is seventy years of age, his wife does not work, he lives in Sydney, does not his own home and without the income generated from his current position finds it extremely difficult to make ends meet. The evidence before me makes clear that the applicant’s current employer is unable to hold the position open indefinitely and that unless a stay is granted the applicant will lose his position. I am satisfied that the applicant has demonstrated that his interests would be seriously and adversely effected unless a stay is granted.

51 In reaching a determination in this matter the interests of the applicant must be seen as a relevant, but secondary, consideration. Unless I am comfortably satisfied that the applicant does not represent a risk to children a stay cannot be granted irrespective of any adverse consequences that may flow to the applicant. However having taken into account all relevant factors I am comfortably satisfied that the applicant does not pose a risk to the children and accordingly pursaunt tos.9(6) I grant a stay, subject to the conditions outlined below.

Conditions
52 The respondent submits that if the Tribunal intends to grant a stay it should be granted subject to conditions. A Minute of Proposed Conditions for Stay was filed by the respondent on 7 September 2001 and set out four proposed conditions. In the interests of caution I broadly accept the respondent’s submissions that conditions should be imposed although it would appear to me in light of my findings in respect of the applicant that these conditions may be unnecessary. This matter however can be more fully explored prior to making final orders.

53 I have given close consideration to the respondent’s proposal that a condition be imposed that “Another adult be present (other than the bus driver) whilst the applicant is engaged [in his current position].” I decline to impose that condition as first, in my view the absence of a second adult does not mean the applicant represents a risk to children; second in any event I note that the driver of the bus while not supervising the applicant is in his company at all relevant times, is very experienced and enjoys the confidence of his employer; and third, from the evidence before me it would appear that if such condition were imposed there is a strong likelihood that Mr AG would not be permitted to return to his current position.

Orders made on 10 September 2001
54 The operation of a prohibition under the Child Protection (Prohibited Employment) Act 1998 in relation to the offences of "Indecent assault on Male person (2 charges)" of which the applicant was convicted on 31 January 1951 and 23 July 1951 respectively, is stayed pending the determination of this matter subject to the following conditions:

(1) That the applicant not engage in any paid or voluntary child related employment as defined in the Child Protection (Prohibited Employment) Act 1998, apart from his current employment as an escort for a disabled child with the School 'X';
(2) The applicant to inform School 'X' in writing within forty eight hours of the date of these orders of the nature of his convictions and provide a copy of that correspondence to the Commission and the Tribunal; and
(3) A copy of this order to be served on the Principal and bus driver of the School 'X' and the Commissioner of Police, New South Wales Police Service.