BR v Commission for Children and Young People

[2002] NSWADT 160

CITATION:	BR v Commission for Children and Young People [2002] NSWADT 160
DIVISION:	Community Services Division
PARTIES:	Applicant BR Respondent Commission for Children and Young People
FILE NUMBER:	024021
HEARING DATES:	22/04/2002, 03/07/2002, 02/08/2002
SUBMISSIONS CLOSED:	08/02/2002
DATE OF DECISION:	09/06/2002
BEFORE:	Kelly T (Deputy President)
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900
CASES CITED:	AG v NSW Commission for Children and Young People (2001) NSW ADT 163 A v Commission for Children and Young People (2001) 107 IR 211 Commission for Children and Young People v AG 2002 NSWSC 582 CooperBrooks(Wollongong)Pty Ltd v Commissioner of Taxation 147 CLR 257
REPRESENTATION:	Applicant in person Respondent I Burke barrister
ORDERS:	1. The application is declined as the applicant is not a prohibited person in respect of the offence in issue, being the offence of attempted carnal knowledge for which the applicant was found guilty on 5 June 1961.

(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 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, The Tribunal has 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 the Tribunal has referred to the applicant as "BR." 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 BR in respect of the offence of Carnal Knowledge.

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. Further details are set out below.

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.

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

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 "Child" and "Child-related employment" are defined in s 3

9 "Employment" is defined in s 3.

10 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.

11 The issue for the tribunal to decide is whether the Applicant has been convicted of a serious sexual offence as the provisions of s 9(3)(b) of the Act excludes an offence which was committed outside New South Wales if that offence would not have been an offence if it was committed in New South Wales. If he has not been convicted of a serious sexual offence he can not be a prohibited person for the purposes of the Act.

Evidence

12 A summons to produce was served on the South Australian Police by the respondent and this resulted in the production of a police record showing that the Applicant was convicted in Adelaide on 5 June 1961 of carnally know or attempt to have carnal knowledge.

13 The Respondent produced a birth certificate of the victim showing that she was born on 31 August 1944.

14 The Applicant gave convincing evidence that he only had sexual intercourse on one occasion with the victim which is in January or February 1961.

Reasons and decision

15 As the victim was born on 31 August 1944 she was older than 16 years of age at the time of the offence.

16 s 55 of the Criminal Law Consolidation Act of South Australia in force at the time of the offence made it a criminal offence to have sexual intercourse with a female who was under the age of 17 years.

17 s 72 of the New South Wales Crimes Act as it was in force at the time of the offence made it a criminal offence to have sexual intercourse with a female under the age of 16 years.

18 The act of sexual intercourse between the Applicant and the victim was not a criminal offence in New South Wales at the time it occurred although it was a criminal offence in South Australia.

19 s 9(3)(b) of the Act excludes from the definition of prohibited person an offence involving sexual activity that was committed outside New South Wales that was not an offence in New South Wales.

20 Accordingly I have determined that the Applicant is not a prohibited person within the meaning of the Child Protection(Prohibited Persons) Act.

Order

1 The application is declined as the applicant is not a prohibited person in respect of the offence in issue, being the offence of attempted carnal knowledge for which the applicant was found guilty on 5 June 1961.