Be v Commission for Children & Young People

[2002] NSWADT 89

CITATION:	BE -v- Commission for Children & Young People [2002] NSWADT 89
DIVISION:	Community Services Division
PARTIES:	APPLICANT BE RESPONDENT Commisson for Children & Young People
FILE NUMBER:	024007
HEARING DATES:	30/05/2002
SUBMISSIONS CLOSED:	05/30/2002
DATE OF DECISION:	06/06/2002
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 I Bourke, barrister
ORDERS:	ORDER MADE 30/05/2002; The Child Protection (Prohibited Employment )Act 1998 is not to apply to Mr BE in respect of the offence of "carnal knowledge" of which he was convicted at Parramatta Petty Sessions on 24 March 1966.

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 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 ( the Act ) not apply to Mr BE in respect of the offence of carnal knowledge for which he was convicted on 24 March 1966 at Parramatta Petty Sessions.

Legislative provisions
2 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

3 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.

4 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.

5 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.

6 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
7 The documentary evidence in this matter included:
1. Exhibit A Mr BE’s application to the Tribunal including an attached statement.

2. Exhibit B Letter from the Australian Catholic University to Mr BE dated 15 May 2002

3. Exhibit 1 Bundle of documents filed for the Commission on 15 May 2002.

8 Mr BE is now 56 years old. The Applicant has a solid working history. He currently lectures full time at Australian Catholic University lecturing law to students of nursing. He has held that position for 16 years. In addition he sits on three panels and has been on those panels for the last 2 years; the Nurses Disciplinary Tribunal, the Impaired Nurses Board which deals with nurses who require rehabilitation and the Professional Standards Committee for Nurses.

9 Between 1967 and 1974 the applicant held a variety of positions including stockman and station manager. He began his nursing training in 1974 and after completing that course he did a Diploma of Education under a scholarship. During this period he worked as a psychiatric nurse.

10 The Applicant has been married since 1966 (36 years) and has two sons to that marriage now aged 34 and 35. The younger son still lives with his parents. The Applicant reports he has a good relationship with each son.

11 The Applicant was convicted of carnal knowledge in 1966. He was 18 years old and the girl was 15 years old. They were ‘going steady’. A child was born of that union and subsequently adopted out. In the last week the Applicant, after contacting the mother for the first time in 35 years made contact with his first born son. He reports a positive experience.

12 The Applicants criminal record has not changed since 1972 when he was charged for carrying animals so as to cause harm. There were two earlier convictions, one in 1960 for being an uncontrollable child and another in 1961 for stealing.

13 The Commission does not oppose this application.

14 The Tribunal finds the Applicant poses no risk to child and makes the following orders:

1. An order declaring that the Child Protection (Prohibited Employment) Act 1998 does not apply to Mr BE in respect of the offence of carnal knowledge of which he was convicted 24 March 1966. This order is not subject to any conditions.

2. Pursuant to s9(10) the Tribunal will notify the Commissioner of Police and the Screening Unit of the Department of Community Services of the terms of these orders.