Chief Executive Officer, Department for Child Protection v S
[2007] WASCA 230
•31 OCTOBER 2007
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- S [2007] WASCA 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 230 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:130/2007 | 26 OCTOBER 2007 | |
| Coram: | PULLIN JA | 30/10/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for stay of execution granted | ||
| B | |||
| PDF Version |
| Parties: | CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION S |
Catchwords: | Practice and procedure State Administrative Tribunal Review of decision to issue a negative notice under Working with Children (Criminal Record Checking) Act 2004 (WA) Application for stay of execution |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 106(1) Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(5) |
Case References: | Chief Executive Officer, Department for Child Protection v C [2007] WASCA 172 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 Jemielita v The Medical Board of Western Australia (Unreported; WASC; Library No 920389; Ipp J; 24 July 1992) Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- S [2007] WASCA 230 CORAM : PULLIN JA HEARD : 26 OCTOBER 2007 DELIVERED : 31 OCTOBER 2007 FILE NO/S : CACV 130 of 2007 BETWEEN : CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
- Appellant
AND
S
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J CHANEY (DEPUTY PRESIDENT)
Citation : S and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 222
File No : VR 95 of 2007
(Page 2)
Catchwords:
Practice and procedure - State Administrative Tribunal - Review of decision to issue a negative notice under Working with Children (Criminal Record Checking) Act 2004 (WA) - Application for stay of execution
Legislation:
State Administrative Tribunal Act 2004 (WA), s 106(1)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(5)
Result:
Application for stay of execution granted
Category: B
Representation:
Counsel:
Appellant : Ms J C Pritchard
Respondent : No appearance
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : No appearance
Case(s) referred to in judgment(s):
Chief Executive Officer, Department for Child Protection v C [2007] WASCA 172
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Jemielita v The Medical Board of Western Australia (Unreported; WASC; Library No 920389; Ipp J; 24 July 1992)
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 3)
1 PULLIN JA: This is an application for a stay of orders made by the State Administrative Tribunal on 30 August 2007, which set aside the decision of the appellant, exercising powers under the Working with Children (Criminal Record Checking) Act 2004 (WA).
2 The first three paragraphs of SAT's reasons for its orders contain a summary of what was decided. They read:
The applicant received a negative notice under the Working With Children (Criminal Record Checking) Act 2004 (WA) on 27 April 2007. The effect of the notice was to prevent him carrying out child-related work. The reason for the notice was that the Chief Executive Officer of the Department for Community Development considered that summary convictions against the applicant in 1977 and 1981 constituted circumstances which should result in the issue of a negative notice.
The applicant was, until receipt of the notice, engaged in training young athletes. He had been engaged in that activity since around 1980. Training young athletes has been the focus of his life for in excess of 25 years. He has achieved a degree of success and holds relatively high qualifications as an athletic coach. There is no suggestion of any inappropriate conduct since the incident the subject of the conviction in 1981. Because the applicant wished to continue with his athletics training, he applied to the Tribunal for a review of the decision to issue a negative notice.
The Tribunal examined the convictions against the applicant and considered their relevance to child-related employment. It concluded that the convictions were relevant to child-related employment. The Tribunal also considered the fact that a period of 26 years has passed since the most recent conviction, and the applicant enjoyed strong support from those associated with his athletics club for his continued involvement in training young athletes. It concluded that, in the particular circumstances, a negative notice should not issue because it did not consider that children were likely to be at risk from continued contact with the applicant [1] - [3].
3 The grounds of appeal reveal the issues to be dealt with in this appeal. The grounds read:
1. The learned Judge erred in law in construing s12(5) of the Working with Children (Criminal Record Checking) Act 2004 ('the Act') in that the leaned Judge:
(i) found that it was necessary that the Respondent pose more than an appreciable risk to children before the 'particular circumstances of the case' would warrant a negative notice being issued to the Respondent;
- (ii) failed to find that if there existed any risk that an applicant would commit an offence against children, that would constitute 'particular circumstances' warranting the issue of negative notice;
(iii) failed to find that if there existed any risk that an applicant would commit a sexual offence against children, that would constitute 'particular circumstances' warranting the issue of a negative notice.
- 2. The learned Judge erred in law in that he misconstrued the criterion of 'the best interests of children' in s12(8) of the Act in that the learned Judge:
(i) found that it was necessary that the Respondent pose more than an appreciable risk to children before it would not be in the best interests of children for the Respondent to be issued with an assessment notice permitting him to work with children;
(ii) failed to find that if there existed any risk that an applicant would commit an offence against children, it would not be in the best interests of children for that applicant to be issued with an assessment notice;
(iii) failed to find that if there existed any risk that an applicant would commit a sexual offence against children, it would not be in the best interests of children for that applicant to be issued with an assessment notice.
5 A stay maintains the status quo which existed before the tribunal made the orders under appeal. See Chief Executive Officer, Department for Child Protection v C [2007] WASCA 172 per Buss JA at [13].
6 The jurisdiction conferred by the SAT Act to grant a stay is unconfined by any express criteria. In Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308, 'generally applicable' principles or considerations relevant on a stay application were listed [9]. One of the considerations listed was whether or not, without the grant of a stay, the right of appeal would be rendered nugatory. This is particularly important where the judgment concerns money or property.
(Page 5)
- See for example Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 per Dawson J at 222 - 223. However, in a case where there is no property to be transferred nor money to be paid pursuant to the judgment, that consideration may be of little or no relevance. In this case a refusal of a stay would not render the appeal nugatory. The important considerations in this case are public interest considerations, the balance of convenience, whether the appeal has reasonable prospects of success and the principle that the respondent is entitled to the benefit of (or the 'fruits' of) the judgment appealed from. Public interest considerations will often be relevant when considering the right or freedom of a person to practice or work or fulfil a position pending a decision or appeal which calls that right or freedom into question. See for example Jemielita v The Medical Board of Western Australia (Unreported; WASC; Library No 920389; Ipp J; 24 July 1992) and Chief Executive Officer, Department for Child Protection v C [15].
7 The Working with Children (Criminal Record Checking) Act 2004 is an Act, the long title of which, states that it is:
An Act -
• to provide for procedures for checking the criminal record of people who carry out, or propose to carry out, child-related work
• to prohibit people who have been charged with or convicted of certain offences from carrying out child-related work,
and to provide for related matters.
8 The legislation reveals an intention to ensure, via a screening process, that in certain circumstances persons with certain types of convictions for offences which may make them unsuitable persons to work with children, do not do so. The Second Reading Speech confirms this. The Minister in that speech (Hansard, Legislative Assembly, 20 October 2004, page 6949 said:
The intention of the Bill is to introduce a high standard of criminal record screening into areas of child-related work. The legislation aims to protect children from harm by: deterring people from applying to work with children if they have criminal records that indicate they may harm children; preventing people with such criminal records who do apply from gaining positions of trust in certain paid and unpaid employment; establishing consistent standards for criminal record screening for working with children and the ethical use of such information; and contributing to awareness that keeping children safe is a whole-of-community responsibility.
(Page 6)
9 Section 3 of the Act provides that the appellant, in performing a function under the Act, is to regard the best interests of children as the paramount consideration. A person may be prohibited from involvement in child-related business, child-related employment or child-related work as a result of the issue of a negative notice by the appellant as Chief Executive Officer of the Department of the Public Service, principally assisting the Minister in the administration of the Act.
10 The appellant in this case issued a negative notice concerning the respondent. The effect of the negative notice was serious, as the tribunal noted when it said [13]:
The consequences of receiving a negative notice are serious. A negative notice makes it an offence for a person to be employed in child-related employment or carry on a child-related business. An assessment notice is a prerequisite to employment in child-related employment or business. Both child-related employment and child-related businesses are concerned with 'child-related work'. The breadth of definition of child-related work, namely work 'the usual duties of which involve or are likely to involve contact with a child' means that the absence of an assessment notice precludes a person from a wide range of employment or voluntary undertakings.
11 The respondent had in the past been convicted of the offences of wilful exposure, aggravated assault and stealing. The aggravated assault conviction was a sexual assault on a 7-year-old girl, committed in the presence of other children. I take into account, as did the tribunal, that the offences occurred 26 years ago when the respondent was 38. He was 64 at the time of the SAT proceedings.
12 The appellant noted, when issuing the negative notice, that the respondent had displayed behaviour of a sexually deviant nature on more than one occasion and noted that no evidence had been provided that the respondent had taken action to address his sexually inappropriate behaviour or associated problems, such as his 'problematic alcohol use'. It is evident also from the tribunal's reasons that the respondent is in a state of denial to some degree about some of the details of the convictions.
13 I now turn to weigh up the considerations bearing on whether or not a stay should be granted. I accept that the issues raised in the grounds of appeal raise important arguments about the proper construction of this relatively new legislation and in my opinion the grounds have reasonable prospects of success, as that expression is explained in another context in the decision of Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
(Page 7)
14 Given the existence of reasonable prospects of success, public interest considerations should be taken into account. If a stay is not granted the respondent will be free to continue his work as a coach with child athletes. The nature of the offences, even though committed many years ago, do raise legitimate concerns about the respondent's suitability to coach children. This should be taken into account pending the hearing of this appeal. The weight to be given to this factor is increased because the respondent does seek to minimise and deny some aspects of the history of the offences. The balance of convenience favours the grant of a stay. The respondent will not suffer any appreciable financial consequence if the stay is granted. The stay will mean that the respondent cannot work as a coach pending the appeal. There is also some inconvenience to the club, but the club was able to arrange an alternative coach to look after coaching duties until the end of the season.
15 I keep in mind that the respondent is prima facie entitled to the benefit of the judgment, but after taking into account the public interest consideration; the prospects of success and the balance of convenience, I conclude that there should be a stay in the terms sought by the appellant.
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