Commission for Children & Young People v UR - [2007] NSWSC 1099

No judgment structure available for this case.

Reported Decision:
173 A Crim R 300

New South Wales

Supreme Court

CITATION: Commission for Children & Young People v UR [2007] NSWSC 1099
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7 February 2007

JURISDICTION: Administrative Law

JUDGMENT OF: Adams J at 1

EX TEMPORE JUDGMENT DATE: 7 February 2007

DECISION: 1. Leave to extend time for filing a notice of appeal is granted; 2. The appeal is dismissed; 3. The Commission is to pay the applicant's costs.

CATCHWORDS: Child protection - occupations dealing with children - exclusion of persons with convictions for sexual offences - what facts constitute the offence - procedure in ADT - nature of jurisdiction

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998 s9(1)
Commission for Children and Young People Act 1998
Crimes Act 1900 ss 61N, 81A
Criminal Legislation (Amendment) Act 1992
Summary Offences Act 1988 ss 4, 5

CASES CITED: Crampton v The Queen (2000) 206 CLR 161
Crowe v Graham (1968) 121 CLR 375
Harkin (1989) 38 A Crim R 296
R v Manson (unreported NSWCCA 17 February 1993)
The Queen v Close 48 VLR 45

PARTIES: Commission for Children and Young People (Plaintiff)
"UR" (First defendant)
Administrative Appeals Tribunal (Second defendant)

FILE NUMBER(S): SC 2006/30054

COUNSEL: Mr Peter Singleton (Plaintiff/appellant)
Mr Mark Preece (Defendant/respondent)

SOLICITORS: I V Knight (Plaintiff)
Braye Cragg Solicitors (First defendant)

LOWER COURT JURISDICTION: Administrative Decisions Tribunal

LOWER COURT DATE OF DECISION: 15 March 2006

LOWER COURT MEDIUM NEUTRAL CITATION: UR v Commission for Children and Young People [2006] NSWADT 78

Ex tempore - revised

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

WEDNESDAY 7 FEBRUARY 2007

30054/06 - COMMISSION FOR CHILDREN AND YOUNG PEOPLE v UR & ORS

JUDGMENT

1 HIS HONOUR: This is an appeal by the Commission for Children and Young People brought under s9(1) of the Child Protection (Prohibited Employment) Act 1998 (the Child Protection Act) from the decision of the Administrative Decisions Tribunal. (I refer to the applicant in the Tribunal proceedings as "the applicant" and the appellant in these proceedings as "the Commission"). I have had the benefit of very detailed submissions from counsel and what with respect seems to me to be a thorough judgment of the issues by the Tribunal and have reached a clear view as to the disposal of the principal issues in the appeal. Given the nature of the proceedings I think it desirable that I should give judgment immediately rather than reserve. I hope that I will fairly deal with the arguments that have been addressed to me but, given that this is an ex tempore judgment, I do not propose to refer to them extensively.

2 The Child Protection Act makes provision for excluding identified persons from employment where there might be a risk to the safety of children. The principal mechanism used by the Act is to identify particular offences upon conviction for which a person becomes "a prohibited person" and unable, therefore, at least prima facie, to work in occupations where children might be exposed to a risk of inappropriate conduct. However, because, as seems clear, not every person convicted of an offence such as this can fairly be regarded as a risk to children, he or she may apply to the Industrial Relations Commission or the Administrative Decisions Tribunal in particular circumstances to obtain a declaration that the Child Protection Act is not to apply to that person in respect of the specified offence.

3 The applicant brought an application under s9(1) of the Child Protection Act seeking a declaration that it did not apply to him in respect of a specified offence and thus enabling him to continue to undertake child-related work. He did this because he had been convicted in the Wyong Court of Petty Sessions on 5 January 1984 of an offence under s81A of the Crimes Act 1900, which is in the following terms:

4 In respect of this offence sentence was deferred on the applicant entering into a recognisance in the sum of $1,000 to be of good behaviour for three years and appear for sentence if called upon to do so. It is not disputed that he has not subsequently been convicted of any criminal offence and that he complied with the terms of his recognisance. For reasons that will become clear in due course, the terms of the charge of which the applicant was convicted are crucial: "that you at Noraville in the State of New South Wales being a male person did commit an act of indecency with AB, a male person”.

5 The applicant's principal submission to the Tribunal was that this offence was not a "serious sex offence" within the meaning of s5 of the Act but, as the application itself makes clear, in the event that this submission was rejected, he sought a declaration that the Act did not apply to him because he did not pose a risk to the safety of children.

6 It is helpful, I think, to set out the relevant statutory provisions. At the relevant time they were contained in the Child Protection Act, but since 2005 have been moved without material change into the Commission for Children and Young People Act 1998. For ease of reference I propose to set out the provisions as they appear in the earlier legislation.

prohibited person

Child Protection (Offenders Registration) Act 2000

(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 8A or 9 declares that this Act is not to apply to the person in respect of the offence.

serious sex offence

Crimes Act 1900

(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.

Crimes Act 1900

7 Because of the procedural complication to which I will come to in due course reference should also be made to s 9(1).

“9 IRC and ADT may make declarations concerning prohibited persons

relevant tribunal

Industrial Relations Act 1996

(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.

(6) On an application under this section, the relevant tribunal may, by order, 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 or section 8A 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 of 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 Commission of Police of the terms of the order.

8 Section 81A of the Crimes Act 1900 was repealed in 1984. At the time of the offence on 25 September 1983 AB was an adult aged (as I understand) about 20 years and, indeed, has been the long-term partner of the applicant’s. Were these the only material facts the matter would have been simply disposed of by reference to s5(4) of the Act and, if necessary, s5(5), having regard to the repeal to which I have referred.

9 The complicating feature, however, is that it is alleged that, at the time of the commission of the offence under s81A a child (CD) allegedly aged 12 years was present, with the concurrence, if not at the instigation, of the applicant. It was agreed by the parties that this was not then a crime. It became a crime by virtue of the Criminal Legislation (Amendment) Act 1992 which inserted the words “or towards” into s78Q of the Crimes Act 1900. On the same day as the charge under s81A was determined on the applicant's plea of guilty, he had also been charged with an offence under s 81 of the Crimes Act. The charge was in the following terms, "That you on 25 September 1983 at Noraville in the State of New South Wales indecently assaulted CD a male." There is no dispute that no evidence was called in support of this charge and the record shows that the applicant was discharged in respect of it.

10 In the Local Court file and provided to the Tribunal was a record of interview of the applicant, a record of interview of AB, a statement of CD, a statement of CD’s mother and father and that of another witness. There is no record showing whether any of this material was tendered to the court. Indeed, leaving aside the court attendance notices and the ultimate orders, there is no record as to what occurred in the court in connection with the proceedings.

11 The first question for determination arises from the terms of s5(4) of the Act. In his record of interview the applicant admitted that he and AB committed the sexual acts of masturbation and fellatio. The applicant said, in answer to an allegation that he had held the penis and testicles of CD without his consent --

“An indecent suggestion was made to the young person by me, he agreed to the suggestion, I went and got my friend, came back to the boy. The boy then suggested that we go into the bush, led us to a side track.”

“... the boy seemed to give me the come-on, his penis was in a state of erection. He then asked me whether my friend and I did things together. I replied, “Yes.” The boy then stated that he would like to watch. I told the boy that I would go and ask my friend and see what he said. I did so and returned to the boy with my friend...I asked the boy where we could go and he [showed us]...my friend and I then proceeded up the track, lowered our pants and proceeded to masturbate ourselves. At this stage the boy was about five metres away and I noticed that he was watching us. The boy walked over towards us, stood beside us watching. I performed fellatio on [AB]. At this stage the boy was just standing there rubbing his crotch. We didn’t say anything to him and he didn’t say anything to us. I then asked the boy if he’d like to join us. He replied, “No” and walked back about five metres, turned, watched again for a few seconds and walked off.”

12 The invitation to CD to “join us”, it seems to me, would have constituted an offence under s81A as amounting to an attempt to procure an act of indecency with the applicant and or AB. It is clear, however, from the terms of the information set out above that no such charge was laid.

13 I should add that when the applicant used the phrase “young person” he was simply adopting the language used by the police officer. There is nothing in the record of interview in which the police officer stated, or the applicant admitted, the age of CD; nor is there in the record of interview a statement by the police officer, or an admission by the applicant that this conduct occurred in a public place.

14 CD’s age of 12 years is referred to in his statement taken by the police and in that of his father. It is not known if the Magistrate decided or was called upon to consider whether the offence occurred in a public place, whether it occurred in the presence of CD or whether CD was 12 years of age. Had the statements (which form part of the record that are unmarked and not referred to in any way) been tendered before the Magistrate they would have provided adequate material, if no objection were taken to them, for the determination of these issues.

15 It seems to me that no inference could safely be drawn from the mere fact that this material was on the court file that it was received in evidence in respect of the determination of either charge. The crucial importance of identifying tendered material is so much a part of conventional court procedure that the fact that the material is not marked, and the court papers make no reference to any tender, militates strongly against the inference that this material was tendered. Insofar as the assumption of regularity applies, it would support this conclusion.

16 On the other hand, in a busy court the Magistrate might not always make the necessary note and the fact that the material has found its way into the court file certainly suggests that it moved from the prosector’s brief to the court. When it did so, however, is also uncertain quite apart from how it did so, since it appears that the charges first came before the court on 5 October 1983 and it is not at all impossible or unlikely that the material was produced to the court on that occasion, there being no statement of facts on the record.

17 Leaving aside whether the sexual acts in the presence of CD does fall within the relevant conduct, it is crucial to determine whether the involvement of CD was considered by the Magistrate as part of his or her consideration of the offence under s81A of the Crimes Act 1900. It seems to me that, although it is possible that this fact was considered by the Magistrate, it is more probable that it was not.

18 It is contended on the Commission's behalf by Mr Singleton of counsel that, whether the additional material was in fact before the Magistrate as evidence, it was material available for the Tribunal to consider since, he submitted, the fact (as admitted by the applicant in his record of interview) that the sexual activity that occurred between him and his partner was performed in the presence of a child of 12 years was part of "the conduct constituting the offence" within s5(4) of the Child Protection Act. I think it is implicit in Mr Singleton's submission that, had there been no material before the Magistrate concerning the presence of CD, the later discovery or disclosure of the fact that CD was present that matter would not, on any argument, be "conduct constituting the offence".

19 In the event that this conclusion is in error, I should go on to consider the interpretation of s5(4) in respect of the phrase "conduct constituting the offence". The offence here is as particularised in the charge, which I have already set out. It seems to me that it is important to observe that the act of indecency alleged in the charge was that with AB. It is contended by the Commission that what also made the sexual acts committed by the applicant and AB indecent was the fact that they occurred in the presence of a 12-year-old child. Although Mr Singleton conceded that the material facts were those that constituted the elements of the offence, he contended that the added indecency of the presence of the child did constitute an element of the offence charged here.

20 What is "indecent" is the subject of much judicial discussion but for present purposes it is sufficient to refer to R v Manson (unreported NSWCCA 17 February 1993), where Gleeson CJ said –

If, as in the present case, the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. On the other hand, the purpose for which an act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending upon the circumstances of the particular case. The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent. On the other hand, it would certainly not require such a conclusion.”

21 I have also been referred to The Queen v Close 48 VLR 45 and Crowe v Graham (1968) 121 CLR 375, to which I should add a reference to Harkin (1989) 38 A Crim R 296.

22 In substance, the test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to propriety, or an affront to modesty, or would offend the ordinary modesty of the average person. In this respect I think it fair to say that conducting sexual activity in the presence of a 12-year-old child would be regarded by most persons as indecent. However, I do not think that the act of indecency with which the applicant was charged was constituted by, wholly or in part, the presence of CD.

23 On the state of the law as it was in 1984 I think it is unarguable that all sexual acts between males, whether consenting and of whatever age and wherever occurring, were regarded ipso facto as being acts of indecency. I do not doubt that the fact that such acts occurred, if they did, in the present of a 12-year-old child would be regarded as a circumstance of aggravation. A circumstance of aggravation that did not itself form part of the elements of the offence as charged is not an act constituting the offence within the meaning of s5(4). Mr Singleton conceded as much. Here, the factual elements of the charge are clearly and unambiguously set out in the court attendance notice and plainly are confined to the sexual conduct that occurred between the applicant and his partner.

24 There is, of course, in this case the peculiar complication that what I might call the principal offence, namely the sexual activity between the applicant and AB, is no longer a crime. It might have been a crime if it had been committed in terms bringing it within s4 or s5 of the Summary Offences Act 1988 but neither of those offences are serious sex offences “for the purpose of the Act”. The conduct would now constitute an offence under s61N of the Crimes Act 1900, which provides –

“(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years.

25 I note in parenthesis that the sort of activity to which the offence in s 81A was directed, that is, as the Attorney General of the day put it, “the problem of homosexuality”, implying consensual participatory acts or acts done in concert. It was not conduct of a kind which brought into question the presence of another even if that other was a child (see Crampton v The Queen (2000) 206 CLR 161 per Gaudron, Gummow and Callinan JJ at 187).

26 I summarise the position as I see it as follows –

“1. It cannot be inferred that, in connection with dealing with the applicant for the offence under s 81A, the Magistrate was aware of or took into account the admitted fact that the offence was committed in the presence of CD.

2. Leaving aside the statements of CD and his father, there was no evidence that CD was a child or was aged under 16 years.

3. It should be inferred that the statements of CD or his father were not tendered in the proceedings.

4. Even if the Magistrate did take into account that the offence under s81A was committed in the presence of CD as an aggravating objective feature, the presence of CD was not conduct “constituting the offence”.

27 It follows that the Tribunal was correct in concluding that the offence committed by the applicant was not a serious sex offence within the meaning of s5 of the Child Protection Act.

28 The Tribunal was faced with a procedurally difficult situation. It held, in the result, that the applicant is not a prohibited person because he fell within the exception in s5(4) and “the Tribunal accordingly has no jurisdiction to exercise under s9”. The Commission points to the strangeness of the position of the applicant who, seeking the exercise of the Tribunal’s jurisdiction under s9(1), makes as his primary submission the contention that he is not a prohibited person. Although somewhat odd, it seems to me that the applicant was entitled to make the application that he did because he wished, as I understand it, to seek what might conveniently be called an exemption in the event that he was such a prohibited person.

29 It does not seem to me to be improper for a person, in effect, to say to the Tribunal: though I do not believe I am a prohibited person, you might decide otherwise and, if you do, please give me an exemption. Otherwise he might be in the impossible situation of being able neither to establish that he is not a prohibited person or, if he were a prohibited person, seek a declaration that he is not a relevant risk. It does not seem to me to be fair or just, let alone to be required by the terms of s9(1) that a person can only seek a declaration if he or she admits first that they are a prohibited person and is thus precluded from an argument that he or she is not. Aside from anything else, the Commission itself might in such an application raise the question and seek the assistance of the parties in its determination. There is no doubt that the Tribunal has jurisdiction to determine such jurisdictional facts. I might add that before the Tribunal no objection to the procedure adopted by the applicant was taken by the Commission. In my view this approach was correct.

30 It is submitted in the appeal, however, that the application was an abuse of process. I think I have said enough to show that it was not. At first, I thought it might also be some kind of procedural irregularity but I have concluded, in the result, that there was no procedural irregularity and that the question whether the applicant was a prohibited person fairly arose as a preliminary issue for the purpose of determining his application.

31 The order made by the Tribunal is in the following terms -

Child Protection (Prohibited Employment) Act

32 Objection is taken by the Commission to the form of this order since it appears to be a declaration capable of being produced to, for example, a putative employer in answer to any suggestion that the applicant is a prohibited person. Strictly speaking, it may be that the order is binding only as between the Commission and the applicant, although it might be that the Commission is estopped from arguing in a case involving, say, an employer, that the applicant was a prohibited person.

33 This is not an altogether easy question to resolve and I do not think it necessary to resolve it. It is sufficient, I think, to say that I do not think that an appeal lies against the form of an order simply because the effect of that order might be misunderstood by some third party. It follows that I do not propose to make any orders as to the language adopted by the Tribunal in disposing of this case.

34 This appeal is brought nine days out of time by the Commission. No point is taken in this respect on behalf of the applicant. At all events it is a case, I think, where leave to appeal out of time should be granted and I do so.

35 Accordingly, I make the following orders:

1. Leave to extend time for filing a notice of appeal is granted.

2. The appeal is dismissed.

3. The Commission is to pay the applicant’s costs.

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03/10/2007 - Typographical error - Paragraph(s) Coversheet

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Citations

Commission for Children & Young People v UR [2007] NSWSC 1099

Most Recent Citation

HL v Commission for Children and Young People [2008] NSWADT 323

Cases Citing This Decision

17

FZ v Commission for Children and Young People (No 2) [2013] NSWADT 22

VR v Commission for Children and Young People [2012] NSWADT 83

ADV v Commission for Children and Young People [2012] NSWADT 8

Cases Cited

4

Statutory Material Cited

5

Ayoub v Euphoric Pty Ltd [2004] NSWCA 457

Crowe v Graham [1968] HCA 6

Ryan v The Queen [2000] HCA 60

CITATION:	Commission for Children & Young People v UR [2007] NSWSC 1099 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	7 February 2007
JURISDICTION:	Administrative Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	7 February 2007
DECISION:	1. Leave to extend time for filing a notice of appeal is granted; 2. The appeal is dismissed; 3. The Commission is to pay the applicant's costs.
CATCHWORDS:	Child protection - occupations dealing with children - exclusion of persons with convictions for sexual offences - what facts constitute the offence - procedure in ADT - nature of jurisdiction
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998 s9(1) Commission for Children and Young People Act 1998 Crimes Act 1900 ss 61N, 81A Criminal Legislation (Amendment) Act 1992 Summary Offences Act 1988 ss 4, 5
CASES CITED:	Crampton v The Queen (2000) 206 CLR 161 Crowe v Graham (1968) 121 CLR 375 Harkin (1989) 38 A Crim R 296 R v Manson (unreported NSWCCA 17 February 1993) The Queen v Close 48 VLR 45
PARTIES:	Commission for Children and Young People (Plaintiff) "UR" (First defendant) Administrative Appeals Tribunal (Second defendant)
FILE NUMBER(S):	SC 2006/30054
COUNSEL:	Mr Peter Singleton (Plaintiff/appellant) Mr Mark Preece (Defendant/respondent)
SOLICITORS:	I V Knight (Plaintiff) Braye Cragg Solicitors (First defendant)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal
LOWER COURT DATE OF DECISION:	15 March 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	UR v Commission for Children and Young People [2006] NSWADT 78