CS v Commission for Children and Young People

[2002] NSWADT 159

CITATION:	CS v Commission for Children and Young People [2002] NSWADT 159
DIVISION:	Community Services Division
PARTIES:	Applicant CS Respondent Commission for Children and Young People
FILE NUMBER:	024040
HEARING DATES:	08/08/2002
SUBMISSIONS CLOSED:	08/08/2002
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 R. McIlwaine solicitor
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 carnal knowledge for which the applicant was found guilty on 11 May 1973 .

Section 126 provides

(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.

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, 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 "CS." 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 is not to apply to CS in respect of the offence of carnal knowledge.

Legislative provisions

4 In summary, the Child Protection (Prohibited Employment) 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 Child Protection (Prohibited Employment) 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.

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

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 s.3 states:

“Conviction” includes a finding that the charge for an offence is proven even though the court does not proceed to a conviction.

9 s.9 of the Child Protection (Prohibited Employment) 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.

(2) A relevant tribunal is:

(a) the Industrial Relations Commission, or

(b) the Administrative Decisions Tribunal.

(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.

(11) The following applies to proceedings before the Administrative Decisions Tribunal under this section:

(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings.

10 s 579 of the Crimes Act 1900 states:

(1) Where, following the conviction of any person for an offence or a finding that a charge of an offence has been proved against any person, whether the conviction or finding was before or after the commencement of the Crimes (Amendment) Act 1900
(a) sentence in respect of the conviction was suspended or deferred upon the person entering into a recognizance or, in substitution for sentence in respect of the conviction, the person was required to enter into a recognizance, or no conviction in respect of the finding was made and the person was discharged conditionally on his or her entering into a recognizance, and

(b) a period of fifteen years has elapsed since the recognizance was entered into:

(i) without the recognizance having been forfeited during that period or a court having found during that period that the person failed to observe any condition of the recognizance, and

(ii) without the person having, during that period, been convicted of an indictable offence on indictment or otherwise or of any other offence punishable by imprisonment (otherwise than under section 82 of the Justices Act 1902 as amended by subsequent Acts) or without a finding during that period that a charge of such an indictable or other offence has been proved against the person, the conviction or finding shall, where that period expired before the commencement of the Crimes (Amendment) Act 1961, as on and from that commencement, or, where that period expires or has expired after that commencement, as on and from the expiration of that period:

(c) be disregarded for all purposes whatsoever, and

(d) without prejudice to the generality of paragraph (c), be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect.

Without prejudice to the generality of the foregoing provisions of this section, any question asked of or concerning that person in or in relation to any criminal, civil or other legal proceedings otherwise than by his or her counsel, attorney or agent or other person acting on his or her behalf may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into.

(2) Notwithstanding the provisions of subsection (1), where in any criminal, civil or other legal proceedings the person first referred to in that subsection, by himself or herself, his or her counsel, attorney or agent or other person acting on his or her behalf, otherwise than in answer to a question that can, in accordance with the last paragraph of that subsection, be answered in the negative, makes an assertion that denies the fact that the conviction or finding took place or that the recognizance was entered into, then the conviction, finding or recognizance is admissible:

(a) in those proceedings, as to the character, credit or reputation of the person so referred to,

(b) in any prosecution for perjury or false swearing founded on the assertion.

The non-disclosure of the conviction, finding or recognizance in the making or giving of a statement or evidence as to the good character, credit or reputation of the person so referred to shall not of itself be taken, for the purposes of this subsection, to mean that the statement or evidence contains such an assertion.

(3) In this section legal proceedings includes any application for a licence, registration, authority, permit or the like under any statute.

(4) This section does not affect the operation of section 55 of the Defamation Act 1974, or the operation of section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995, for the purposes of section 55 of the Defamation Act 1974.

11 The Applicant filed an application in this Tribunal on 1 July 2002 stating that he requests an order declaring that he is not a prohibited person in relation to an offence of carnal knowledge that he committed around 1972-1973 when he was 19 or 20 years old and the victim was 12 or 15 years of age.

Issues

12 There are four questions that must be answered in order for the Tribunal to determine whether a declaration should be granted. These are, is the Applicant a prohibited person within the meaning of s.5 of the Child Protection (Prohibited Employment) Act? In order to determine this first question the Tribunal must first determine whether or not the Applicant has been convicted of a serious sexual offence. In order to determine this second question the Tribunal must decide the third question which is whether the provisions of s.579 of the Crimes Act applies to the offence of carnal knowledge which the applicant committed and if so whether s.579 prevails over the provisions of s.5 of the Child Protection (Prohibited Employment) Act. If s579 prevails, the offence of carnal knowledge must be disregarded for all purposes including the provisions of the Child Protection (Prohibited Employment) Act.

The evidence

13 At the hearing the Respondent produced a document it had obtained from the NSW Police which stated that the applicant was convicted of carnal knowledge on 11 May 1973 which resulted in: “deferred on entering recog to be G.B. for 2 years.” There are no other entries on the Applicant’s criminal record.

Reasons and Decision

14 On 11 May 1973 a NSW criminal Court convicted the Applicant of the offence of carnal knowledge which had been brought against the Applicant was proven and determined then sentence should be deferred upon the Applicant entering into a recognizance .

15 s.579(1) provides for relevant requirements which must be satisfied before the benefit of the section can be given to a person after a finding that an offence has been proved:

(a) in substitution for a sentence the person was required to enter into a recognizance and (b) 15 years has elapsed since entering into the recognizance, and during this period the recognizance has not been forfeited or a court has not found the person has failed to observe the conditions of this recognizance, and no other offence has been proved.

16 From the police record that has been produced the Applicant has satisfied the requirements set out in s.579(1)(a)and(b).

17 S.579(1)(c) states that when the requirements of s.557(1)(a) and (b) are satisfied the conviction or finding can be “disregarded for all purposes whatsoever”.

18 The question the Tribunal must now address is, does a serious sexual offence as defined in s.5 of the Child Protection (Prohibited Employment) Act include a conviction or finding to which the benefit of s.579 of the Crimes Act applies?

19 This issue has previously arisen in an application before this Tribunal in AG v Commission for Children and Young People (2001) NSW ADT163 as well as in an application to the NSW Industrial Commission in A v Commission for Children and Young People (2001) 107 IR 211. Both these Tribunals determined that the provisions of s.579 of the Crimes Act prevailed over the provisions of the Child Protection (Prohibited Employment Act).

20 The Respondent appealed the decision of AG v Commission for Children and Young People to the Supreme Court and this appeal was heard by Dowd J who gave judgement on 28 June 2002: Commission for Children and Young People v AG 2002 NSWSC 582.

21 Dowd J stated: Hungerford J took the view that there is nothing in the statutory scheme of the Child Protection (Prohibited Employment) Act, … to make it clearly and indisputably contradictory to s 579. He said: Indeed, I am satisfied that “the fairer and more convenient “ construction, to adopt the approach of Mason J in Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (147CLR 297 at 321) and one which is consistent with the competing provisions, would only be for them to operate as each subject to and in empathy with one another”. He (Mason J) explained … that view of the interaction between the two provisions seems to me to be consistent with the ordinary meaning of the words used in each and has been consistent with the legislative intent thereby evinced as to both schemes …

22 Dowd J went on: In dismissing the respondent’s contention that in enacting the Child Protection Act the legislature intended to override s 579 His Honour (Hungerford J) concluded “I am satisfied that a review of the provisions of the Child Protection (Prohibited Employment) Act discloses nothing that the legislature intended to derogate from or otherwise affect retrospectively a right already crystallised under s579. I am firmly of that view even if, which I do not think to be the case, the legislature intended to remove the rights accruing but not yet crystallised under s579. To so view the matter would not only infringe the general common law principle but also the principle enshrined in s30(1)(b),(c) and (4)(b) of the Interpretation Act as the protection of statutory rights and even in a situation where those rights have merely commenced to accrue under the earlier legislation in the sense of being contingent.

23 Dowd J further stated:

It is submitted by the Commission that there is an inconsistency between the Act and s.579 of the Crimes Act but I agree with the submission of Ms Lowson that there is no basis for including (sic) that the legislature did not intend s.579 of the Crimes Act and the Act to operate together. The provisions of s579 are part of the Criminal Justice System and set up a very strict regime, which has a specific purpose, generally to rehabilitated (sic).

I also adopt the submission of Ms Lowson that in asserting inconsistency between the Act and s.579 the Plaintiff fails to apply the principle that in considering the operation of State Acts there is a presumption that the legislature intended both to operate.

I reject the Commission’s reliance on s12 as there is no inconsistency between s12 of the Act and s.579 of the Crimes Act.

For the reasons articulated above and the reasoning of Hungerford J which I apply both in terms of the comity between the Industrial Relations Commission and this Court and in any event I respectfully agree with His Honour. I find there is no inconsistency between the Act and s.579 of the Crimes Act and that the applicant is not a “prohibited person” and thus not competent to bring this application.

24 The Supreme Court decision of Commission for Children and Young People v AG determines the law on the issues that are before this Tribunal.

25 Accordingly, in determining whether the applicant was convicted of a serious sexual offence pursuant to the Child Protection (Prohibited Employment) Act, the offence of carnal knowledge must be disregarded because of the provisions of s579 of the Crimes Act. Thus the Tribunal must determine that the Applicant is not a prohibited person as defined by the Child Protection (Prohibited Employment) Act. Accordingly the tribunal has no jurisdiction to consider the application filed by the Applicant.

Order

1 The Applicant is not subject to the Child Protection (Prohibited Employment) Act 1998 because he is not a prohibited person for the purposes of that Act. The application is declined.