AI v Commission for Children & Young People

[2001] NSWADT 176

CITATION:	AI -v- Commission for Children & Young People [2001] NSWADT 176 revised - 01/11/2001
DIVISION:	Community Services Division
PARTIES:	APPLICANT AI RESPONDENT Commission for Children & Young People
FILE NUMBER:	014056
HEARING DATES:	12/10/2001
SUBMISSIONS CLOSED:	10/12/2001
DATE OF DECISION:	10/25/2001
BEFORE:	Gormly P - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT S Brennan, solicitor
ORDERS:	1. The Child Protection (Prohibited Employment )Act 1998 does not apply to AI in respect of the offence of carnal knowledge of which he was convicted 26 November 1973; 2. The order is not subject to any conditions. Pursuant to s9(10) CP(PE) Act the Tribunal will notify the Commissioner of Police of the terms of this order.

Introduction
1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 ( the Act ) not apply to AI in respect of the offence of carnal knowledge on 26 November 1973 for which he was convicted at Liverpool District Court

2 AI is employed by the Department of Education to drive disabled children to different places in particular to and from school. He has been employed in that capacity for 4 years. He and his wife are also the Foster carers of a 20 month old boy.

3 S6(1) of the Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment.

4 On 28 September 2001 the Tribunal stayed the operation of a prohibition under the Act pursuant to s9(6) of the CP(PE) Act pending further determination of the Tribunal.

Legislative provisions

5 Subject to certain defences and transitional provisions s6(1) of the Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment

6 The terms “prohibited person” and “serious sex offence” are defined in s5 of the Act. The term “conviction” is defined in s3 of the Act.

7 For the purposes of this Act, I find that AI has been “convicted “of a “serious sex offence”

8 The Administrative Decisions Tribunal has jurisdiction to make an order pursuant to s9 of the Act that a person is not a prohibited person with respect to an offence.

9 s9(4)of the Act says 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.

10 S9(5) says 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

Evidence
11 The documentary evidence in this matter included:
Mr AI’s application to the Tribunal
Exhibit 1 Bundle of 3 references tendered by the Applicant without objection. It is noted that none of these references show that the writers had any knowledge of the procedure before the Tribunal.
Exhibit A Applicants criminal history and s58 Crimes Act
Exhibit B Employment declaration 9.2.01 and 15.2.01
Exhibit C Bundle of documents with blue tag

12 AI was born 17 February 1953. He has been married for 22 years to his wife. There are no children of this marriage. However, they are the Foster parents of a 20 month old boy. The Applicant says they have fostered one other small baby when emergency care was required.

13 At the time of the offence the Applicant was 20 years old. The victim was only in Year 7 aged 12/13 years. The Applicant maintains that he was not aware of her young age at the time and that she was more experienced sexually than him. He claims to have informed the police of his activities a day after the incident when he was told how young she was. The evidence on this suggests however there was some delay. It is unclear who made the report however not a great deal turns on this information.

14 The Tribunal on the whole found the Applicant an honest witness and appeared to be relaying incidents as best as his memory allowed.

15 The NSW police record showed no offences of any sort since 1975.

16 The Applicant confirmed under oath that he had always lived and worked in NSW and that he had no charges, convictions warnings or any other related matter in any jurisdiction outside NSW

17 It is the Tribunals finding that there was no predatory behaviour by the Applicant with regard to the 1973 incident. It finds that AI poses no risk to children. The Tribunal makes the following orders:

(1) An order declaring that the Child Protection (Prohibited Employment)Act 1998 does not apply to A1in respect of the offence of “carnal knowledge” of which he was convicted 26 November 1973.This order is not subject to any conditions.
(2) Pursuant to s9(10) the Tribunal will notify the Commissioner of Police of the terms of this order