Ao v Commission for Children & Young People

[2001] NSWADT 216

CITATION:	AO -v- Commission for Children & Young People [2001] NSWADT 216
DIVISION:	Community Services Division
PARTIES:	APPLICANT AO RESPONDENT Commission for Children & Young People
FILE NUMBER:	014062
HEARING DATES:	07/12/2001
SUBMISSIONS CLOSED:	12/07/2001
DATE OF DECISION:	12/17/2001
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 B Antcliffe, barrister RESPONDENT I Bourke, barrister
ORDERS:	1. The Child Protection (Prohibited Employment )Act 1998 does not apply to AO in respect of the offence of carnal knowledge which was proved and dismissed on 27 September 1971at M Children's Court; 2. The order is not subject to any conditions. The Tribunal shall serve a copy of this order on the NSW Commissioner of Police; NSW Department of Education (Employment Screening Unit); the R-T Co-Op Ltd of A .

Introduction
1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 ( the Act ) not apply to AO in respect of the offence of carnal knowledge on 27 September 1971 which was proved and dismissed in M Children’s Court.

2 AO has been employed by the R T S Co-Op Ltd as a casual taxi driver for 3 years and in the past has been employed by the Department of Education as a teacher. The taxi driving includes driving disabled children.

3 Section 6(1) of the Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment.

4 On 2 November 2001 the Tribunal stayed the operation of a prohibition under the Act pursuant to s 9(6) of the CP(PE) Act pending further determination by the Tribunal.

Legislative Provisions
5 Subject to certain defences and transitional provisions s 6(1) of the Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment.

The terms “prohibited person” and “serious sex offence” are defined in s5 of the Act. The term “conviction” is defined in s 3 of the Act.
For the purposes of this Act, I find that AO has been “convicted" of a “serious sex offence”.
6 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.

7 Section 9(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.

8 Section 9(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
9 The documentary evidence in this matter included:
(1) AO application to the Tribunal
(2) Exhibit A Three affidavits Mr L, Mr R and Mrs L sworn 8 November 2001
(3) Exhibit B Letter from Principal of B C S dated 23.11.01
Respondent:
(4) Exhibit 1 charge sheet and depositions 20.9.71
(5) Exhibit 2 Child Welfare report 27.9.71
(6) Exhibit 3 Criminal record of S C Leece
(7) Exhibit 4 Copy of s71 Crimes Act relevant at time of offence
Reasons
10 AO was born 13 February 1954. At the time of the offence he was 16 years old and his girl friend was 15 years old. In July 1971 a child was born of the union and subsequently adopted. After the birth of the child AO was charged with carnal knowledge. The offence was proved and dismissed. The two parents continued to see each other until the end of 1973.

11 AO completed a University degree with a Diploma of Education then worked in Primary School teaching for many years. He has been married to R for 26 years and they have three children A 23,E 18, J 14. His wife swore an affidavit for this matter and was in court with the Applicant.

12 The charge in question is the only charge on AO criminal record. Mr R the proprietor of the cab driven by AO has sworn an affidavit for this matter. He reports that AO is of excellent character and that Mr R has not received any complaints with regard AO work.

Decision
13 The Tribunal finds that the Applicant poses no risk to children and makes the following orders:

An order declaring that the Child Protection (Prohibited Employment)Act 1998 does not apply to AO in respect of the offence of “carnal knowledge” of which he was found and the charge dismissed on 27 September 1975.This order is not subject to any conditions.
Pursuant to s9(10) the Tribunal will notify the Commissioner of Police of the terms of this order. These orders will also be served on the NSW Department of Education (Screening Unit) and R T Co-Op Ltd of A.