AX v Commission for Children and Young People

[2002] NSWADT 247

CITATION:	AX -v- Commission for Children and Young People [2002] NSWADT 247
DIVISION:	Community Services Division
PARTIES:	APPLICANT AX RESPONDENT Commission for Children and Young People
FILE NUMBER:	014071
HEARING DATES:	05/09/2002
SUBMISSIONS CLOSED:	09/05/2002
DATE OF DECISION:	11/27/2002
BEFORE:	Gelin B - Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principla matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT I Bourke, barrister
ORDERS:	1. Application dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the Act) is not to apply to Mr AX is respect of the offence of assault with act of indecency which occurred on 10 April 1997 and for which he was convicted in New South Wales on 12 June 1997. Under s 9(6) of the Act, the Tribunal stayed the operation of a prohibition under the Act on 31 January 2002, subject to conditions, pending further determination by the Tribunal. The hearing of the application for a declaration was conducted on 9 August 2002 and concluded on 5 September 2002.

2 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).)

3 Although s 126(s) 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 "Mr AX". The official copy of the orders provided to the parties includes the name of the applicant.

4 Mr AX is applying for a declaration that the Act does not apply to him, because he wants to apply for a position as a mathematics teacher in high school or the TAFE system.

LEGISLATIVE PROVISIONS
5 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.

6 Subject to certain defences and transitional provisions, the 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.

7 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.

8 "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
(b1) an offence under section 80D or 80E of the Crimes Act 1900, where the person against whom the offence is committed is a child, 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 regulations.
(4) An offence that was a serious sex offence at the time of its commission is not 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 9 of the 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,
(a1) the period of time since those offences were committed,
(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,
(d1) the prohibited person’s present age,
(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 or 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.
(11) The following applies to proceedings before the Administrative Decisions Tribunal under this section:
(a) the Tribunal may not award costs.
(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings.
ISSUES
10 There are two questions to be answered before the Tribunal can determine whether a declaration should be granted. These questions are:

(a) Is Mr AX a prohibited person within the meaning of that term in s 5 of the Act?
(b) Does Mr AX pose a risk to the safety of children taking into account the provisions of s 9(5) of the Act?

EVIDENCE
11 The documentary evidence in this matter consists of

(a) Mr AX’s application to the tribunal;
(b) Several character references about Mr AX submitted by Mr AX;
(c) A number of documents produced under subpoena by former employers of Mr AX;
(d) A bundle of documents provided by the respondent relating to Mr AX’s conviction (Exhibit 1);
(e) Reports of a forensic psychiatrist engaged by the respondent, dated 5.3.02 and 21.4.02 (Exhibit 2);
(f) Transcript of proceedings Downing Centre Local Court in 1997 and a copy of an earlier decision of the Tribunal in which the applicant was a party (Exhibit 3);
(g) Affidavit of David Gallard, Senior Risk Assessor, Employment Screening Unit, NSW Department of Education and Training, 2.7.02 (Exhibit 4);
(h) Copy letter to Mr AX from Department of Transport, 16.10.97, refusing to reissue taxi driver’s licence (Exhibit 5);
(i) Copy letter 12.6.97 from a customer to a taxi company with a complaint about Mr AX’s conduct (Exhibit 6);
(j) Record of complaint, Department of Transport, 23.9.96 (Exhibit 7);
(k) Record of complaint and counselling, 14.4.02 (Exhibit 8);
(l) Record of complaint, 18.5.02 (Exhibit 9).

12 It is common ground that Mr AX is a prohibited person under the Act. The offence of assault with act of indecency for which he was convicted consisted of Mr AX making suggestions to a female passenger that they might engage in sexual conduct and placing his hand on the leg and breast of that passenger. This occurred in the confines of a taxi being driven by and in the control of Mr AX. These are briefly the facts as found proven by the Local Court which convicted him of said offence, and which placed him on a two-year bond.

13 Mr AX, while accepting the fact of said conviction and the legal consequences stemming from it, denies that he was responsible for the acts as described above. Rather, he sees the female passenger as being the initiator of the sexual advances and as the aggressor.

14 Mr AX comes from the Middle East. He migrated to Australia in 1992, apparently as a skilled migrant, with plans to be a mathematics teacher. He had some 12 years teaching experience in his home country, and his credentials and qualifications were recognised by the Department of Education. However, he needed to sit an English Assessment exam, which he failed three or four times. He finally passed such exam last year. But he was then informed that he was a prohibited person. Mr AX’s main motivation in making this application is to obtain the declaration which will enable him to apply for and hopefully obtain employment as a mathematics teacher.

15 For most of the years when he was awaiting or hoping for employment as a teacher, Mr AX was a taxi driver. As a result of the conviction, his taxi driver’s licence was suspended. An appeal to the General Division of this Tribunal for the reinstatement of his licence failed, but subsequently he renewed his licence and resumed driving taxis.

16 Between May 1996, when Mr AX commenced driving taxis, and June 1997, there were three complaints against him by three different clients. One complaint (September 1996) alleged that he was verbally abusive and aggressive towards his passengers. Mr AX attributed this to his being a new immigrant and not being used to the Australian culture. The other two complaints were both of a sexual nature, the first one occurring four days prior to the offence the subject of his conviction. On that occasion it was alleged that he picked up a lone woman at 9p.m. and made explicit sexual comments to her, to the extent that she asked him to drop her off before reaching her destination. She was distressed, and lodged a complaint, and the employer taxi company counselled Mr AX in relation to it. The next sexual offence occurred on 9th or 10th April 1997 - and this is the offence for which he was convicted in 1997.

17 In late 1999 or early 2000 the police sought Mr AX, apparently as a witness to some traffic incident unrelated to any of the aforementioned matters. By his own account in cross-examination, Mr AX felt harassed by police, and expressed his anger and frustration by making direct threats to the office officer, which can only be interpreted as threats to kill him.

18 In September 2001, when contacted by the relevant officer of the Department of Education about his teacher’s licence, Mr AX made remarks that, as a result of his being denied that licence, he "would have to do bad things". This, too, might be seen as a threat. Mr AX explained those remarks as meaning that if he did not get his teacher’s licence, he might be forced to deal in drugs or to steal to support his family.

19 His taxi driver’s licence was reinstated on 23 December 2001. Since then there were two further complaints about Mr AX. One complaint, on 14 April 2002, alleged that he dragged a passenger physically out of the taxi cab. Mr AX states that he did not drag the passenger out of the car himself, but that passers-by did so. He acknowledged, however, that he himself unfastened the passenger’s seat belt. Another complaint, on 18 May 2002, alleged that Mr AX dragged a female passenger out of the car, while verbally abusing her and breaking the strap on her bag. Mr AX stated that he did not drag her out of the car, but acknowledged that he did try to wrest her bag from her, thus breaking its strap.

20 There was also another complaint against Mr AX prior to his experiences as a taxi driver. In 1995 a woman complained to the police that Mr AX, then an encyclopedia salesman, suggested visiting her home to tutor her mentally handicapped son. She alleged that while at her home he placed his head on her shoulder and squeezed her tightly. When she pulled away he attempted to grab her around the waist.

21 Mr AX consistently denies responsibility for any of the aforementioned complaints or incidents, and in his explanations he shifts responsibility on the complainants. He sees himself as quite frequently provoked by female passengers, and describes their attire and/or their sitting next to the driver’s seat and/to their chatting as being signs of sexual provocation. In this respect, it is quite apparent that Mr AX has difficulties interpreting social cues correctly and objectively.

22 With respect to the incidents where he issued threats, Mr AX explained that he does not really mean to carry out those threats, and that he makes such threats to his own children but never carries them out.

23 In support of his application, Mr AX produced a number of personal references which describe him as an able and affable person. Mr AX acknowledged, however, that none of his referees was aware of these proceedings or of his being a prohibited person, and that none of these references were written with the intention that they be submitted to this Tribunal. Accordingly, they carry little weight.

24 Mr AX’s arguments in favour of his application essentially focus on two points. First, that he is a responsible family man and the father of three academically talented and morally upright children. These assertions are neither corroborated nor contradicted by the evidence. However, this has little if any bearing on the determination of this application. Second, he asserts that, in the context of a classroom situation, he would not and could not possibly pose a risk of children.

25 The Tribunal has had the benefit of the reports prepared by Dr Stephen Allnutt. Mr AX did not seek to challenge or rebut these reports. On the contrary, Mr AX acknowledged that this forensic psychiatrist "knows me better than I know myself".

26 Briefly, Dr Allnutt finds that


From a clinical perspective and having regard to the allegations, Mr AX has behaved in a generally unprofessional manner on numerous occasions. His behaviour is characterised by serious professional boundary violations, including a physical and sexual violation of his clients’ personal space. He manifests a pattern of behaviour characterised by a lower threshold for frustration and consequent aggressive response. He has difficulty in negotiating conflictual situations with clients. It is probable that he has a tendency to misconstrue social behaviour and social cues of females, at times erroneously interpreting these cues and behaviours as having erotic/romantic meaning when none was intended. Of further concern is his seeming difficulty in conforming to corporate sanction.

Further, Dr Allnutt reflects upon Mr AX’s pattern of ignoring or trivialising the complaints made against him and states that this "would suggest a difficulty in adapting or conforming his behaviour to future similar circumstances".

While initially assessing the risk (that Mr AX might pose to the safety of children) as low, after observing Mr AX’s presentations to this Tribunal and conduct under cross-examination on 9 August 2002, Dr Allnutt revised his assessment to "an unacceptably higher probability of further inappropriate professional behaviour and boundary violation both physically and sexually. I would include students in late adolescence and young adults in this group".

REASONS FOR DECISION
27 This Tribunal is required to take into account the factors or matters enumerated in s 9(5) of the Act:

(a) The offence for which Mr AX was convicted is clearly a serious one. His conduct may not be at the upper bound in the scale of seriousness, but neither is it a lesser or trivial offence. It is made more serious by the fact that he committed that offence while in a position of some authority and while clearly in control of the vehicle where the victim was in fact a captive.
(a1) Said offence is relatively recent.
(b), (c), (d) and (d1) do not appear to be particularly determinative of this application.
(e) This is of much concern. While there is only one conviction for a serious offence, Mr AX’s pattern of behaviour, and the fact that there is a continuing serious of complaints of aggressive (whether or not sexual) and intrusive conduct must be seen as increasing our assessment of risk.

(f) Mr AX appears to be unable to learn from experiences, even from experiences, such as his conviction, which have brought grief and embarrassment to himself and to his family and which have caused him to lose his job and source of income. He exhibits a serious inability to control his anger and frustration, and it is unlikely that being in a classroom situation (where Mr AX claims he would pose no risk) he would be any more capable of such control, or of a more objective interpretation of adolescents’ social clues (including attire, demeanour, and language). Though Mr AX claims that his threats are not to be taken literally or seriously (see paragraph 22 above), Counsel for the Respondent submitted that Mr AX has in fact acted out some such threats. We are compelled to agree.

28 Section 9(4) of the Act does not allow this Tribunal to grant the declaration sought by the Applicant “unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.” I am unable, on the basis of all the evidence and submissions presented in these proceedings, to come to the view, or belief, that Mr AX does not pose such risk. Rather, I have come to regard that such risk is quite real. I must therefore decline the application.

ORDER
The Application is dismissed.