BA v Commission for Children and Young People

[2002] NSWADT 86

CITATION:	BA -v- Commission for Children and Young People [2002] NSWADT 86
DIVISION:	Community Services Division
PARTIES:	APPLICANT BA RESPONDENT Commission for Children and Young People
FILE NUMBER:	024003
HEARING DATES:	25/02/2002
SUBMISSIONS CLOSED:	03/04/2002
DATE OF DECISION:	05/27/2002
BEFORE:	Kelly T (Deputy President)
APPLICATION:	Declaration that applicant not a prohibited person - Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900
CASES CITED:
REPRESENTATION:	APPLICANT J Donnellan, solicitor RESPONDENT A Johnson, solicitor
ORDERS:	The application is dismissed for lack of jurisdiction.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides
(1A) …
(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.

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 “BA." The official copy of the orders provided to the parties includes the name of the applicant.

3 This is an application for an order declaring that the Child Protection (Prohibited Employment) Act 1998 (the CP(PE) Act) is not to apply to BA in respect of the offences set out in paragraph 14 hereof.

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.

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.

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.
7 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) of the Act 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 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.

9 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.
(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.
(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.
Issues
10 There are two questions that must be answered in order for the Tribunal to determine whether a declaration should be granted. These are:
(a) Is BA a Prohibited Person within the meaning of s. 5 of the CP(CE) Act? In particular has BA been convicted of a Serious Sex Offence pursuant to s. 5 of the Act.
(b) If so does BA pose a risk to the safety of children taking into account the provisions of s. 9(5) of the CP(PE) Act?
Evidence
11 BA is employed as a school bus driver. His employer has become aware of his criminal convictions and has expressed its concern that BA may be a Prohibited Person and has suggested to him that he make this application to the tribunal.

12 BA’s criminal record is set out hereunder:

Date of Conviction	Offence	Statute	Maximum Penalty Prescribed by the Statute
18.2.74	Wilful and Obscene Exposure	s.12 Summary Offences Act 1970	$400 or 6 mths imprisonment
21.2.77	Wilful and Obscene Exposure	s.12 Summary Offences Act 1970	$400 or 6 mths imprisonment
19.3.79	Wilful and Obscene Exposure	s.12 Summary Offences Act 1970	$400 or 6 mths imprisonment
Indecent Exposure	s.11 Summary Offences Act 1970	$100
23.3.81	Serious Alarm (exposing penis)	s.5 Offences in Public Places Act 1979	$200
2.12.81	Wilful and Obscene Exposure	s.6 Offences in Public Places Act 1979	$400 or 6 mths imprisonment


When the matter came before the tribunal the issue of jurisdiction was raised and the matter was adjourned for the solicitor for BA and the solicitor for the Commission For Children and Young People to make written submissions thereon.

Reasons and decision
13 The provisions of s. 5(3)(a),(b),(c),(d),(e) and 5(4) are not applicable.

14 There has been no offence prescribed by the regulations pursuant to s 5(f).

15 The parties have not made any submissions in respect to the applicability of s. 5(5) instead they both focussed on s. 5(3)(a). Similarly I do not see that it is necessary to address the applicability of s. 5(5).

16 In respect of the applicability of s. 5(3)(a) I have no material before me regarding the details of the offences, however on their face they would probably involve either sexual activity or an act of indecency. However it is not necessary for me to make a ruling on this.

17 S. 5(3)(a) does not apply to any of the offences committed by BA as not one of them was punishable by penal servitude or imprisonment of 12 months or more as is required by that sub-section.

18 Accordingly BA is not a Prohibited Person as defined in the Act and thus I have no jurisdiction to make an order declaring that the Act does not apply to him.

Order
19 The application is dismissed as I have no jurisdiction to consider it.