EC v Commission for Children and Young People

[2008] NSWADT 176

CITATION:	EC v Commission for Children and Young People [2008] NSWADT 176
DIVISION:	Community Services Division
PARTIES:	APPLICANT EC RESPONDENT Commission for Children and Young People
FILE NUMBER:	084001
HEARING DATES:	20 May 2008
SUBMISSIONS CLOSED:	12 June 2008
DATE OF DECISION:	18 June 2008
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998 Commission for Children and Young People Act 1998
CASES CITED:	Commission for Children & Young People v UR [2007] NSWSC 1099 Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIRComm 101 The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136
REPRESENTATION:	APPLICANT S Murdoch, solicitor RESPONDENT M Higgins, barrister
ORDERS:	It is declared that the Commission for Children and Young People Act 1998 is not to apply to EC in respect of the charge of carnal knowledge (two counts) for which he was convicted in the Bathurst Children’s Court on 20 January 1992.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

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,



(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,


(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983


(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.

REASONS FOR DECISION

1 The applicant, who in these reasons will be referred to by the pseudonym, EC, has applied to the Administrative Decisions Tribunal for an order under the Commission for Children and Young People Act 1998 (‘the Commission Act’). EC is a ‘prohibited person’ having committed a ‘serious sex offence’, namely the offence of carnal knowledge. Unless the order he seeks is granted, it will be an offence for EC to apply for, undertake or remain in ‘child-related employment’ (section 33C of the Commission Act).

2 EC makes this application so he can continue to work as a cleaner. In his current position he is required to work in a variety of locations; a small number bring him into contact with children. Apparently his employer has arranged for EC not to work in any location where children might be present until EC’s application is determined by the Tribunal. For the purpose of this application it is not necessary to determine whether, as EC’s employer apparently believes, that employment constitutes ‘child-related employment’.

3 The respondent Commission neither consents to nor opposes EC’s application.

Procedure

4 This matter was listed for a one-day hearing in Bathurst. Both parties were legally represented.

5 Consistent with its practice in this jurisdiction, prior to that hearing, the respondent Commission wrote to EC and requested information it believed relevant to an assessment of risk. EC co-operated in that process. On the basis of that information the Commission issued section 14A notices to a number of government agencies. That provision gives the Commission power to require any government agency to provide it with information relevant to the assessment of a person who may pose a risk to the safety of children.

6 At the hearing information came to light, which revealed that the Commission’s enquiries were incomplete. An adjournment was granted at the request of the Commission to enable further section 14A notices to be issued. Mindful of the cost implications of an adjournment in a jurisdiction where costs are not recoverable, the parties were given the opportunity at the hearing to make final submissions on the basis that no information adverse to EC was disclosed by the respondent’s further enquiries and to revise those submissions if that proved not to be the case.

7 By letter dated 12 June 2008, the respondent through its solicitors advised that no material adverse to EC had been produced and accordingly it stood by its earlier submissions, that is, it did not oppose the application.

What EC must prove

8 Section 33I(1) of the Commission Act provides that the Administrative Decisions Tribunal may make an order declaring that the Commission Act is not to apply to an applicant in respect of a specified offence. That order may be made subject to conditions (section 33I(6)).

9 Section 33J(1) provides that the Tribunal is not to make an order on a review application (an application made under section 33I(1)) unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children. Section 33J(2) provides that it is to be presumed that EC poses a risk to the safety of children, unless he proves the contrary. In deciding whether or not to make an order under section 33I the Tribunal must take into account the following (section 33 J(3)):

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(b) the period of time since those offences were committed,

(c) the age of the person at the time those offences were committed,

(d) the age of each victim of the offences at the time they were committed,

(e) the difference in age between the prohibited person and each such victim,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the prohibited person’s present age,

(h) the seriousness of the prohibited person’s total criminal record,

(i) such other matters as the Commission or tribunal considers relevant.

10 In determining EC’s review application the Tribunal is directed to give paramount consideration to the safety and welfare of children and, in particular, the need to protect them from abuse (section 32).

11 The test set out in section 33J(1) of the Commission Act is in similar, but not identical terms to the corresponding provision in the now repealed Child Protection (Prohibited Employment) Act 1998 (the CPPE Act) Act, that is, section 9(4)). As far as I am aware, to date, section 33J of the Commission Act has not been considered by a superior court. The CPPE Act on the other hand was considered on a number of occasions by the Supreme Court (see for example Commission for Children and Young People v V [2002] NSWSC 949; The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136; Commission for Children & Young People v UR [2007] NSWSC 1099). While great care should be taken in applying principles developed to deal with different, albeit similar, legislative provisions, those decisions where the operation of section 9(4) of the CPPE Act has been considered provide useful assistance on the application of section 33J(1) of the Commission Act.

12 The meaning of the word ‘risk’, for the purpose of section 9(4) of the CPPE Act was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis in R v Commission for Children and Young People [2002] NSWIRComm 101. Haylen J said that section 9(4) was focussed on:

‘[N]ot a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.’ (Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].)
13 Young CJ held [at 27] that ‘risk’ in the context of section 9(4) meant ‘a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child’.

Risk Indicia – section 33J(3) matters

14 EC is 34 years of age.

15 In 1990 he was convicted of two counts of carnal knowledge after entering a guilty plea. He was 15 years of age when both offences were committed. His victim was 13 years at the time of the first offence and 14 at the time of the second. EC was placed on probation for 12 months.

16 The index offences occurred close to twenty years ago.

17 EC’s criminal history discloses a number of other convictions. Most were committed when he was a minor and primarily involve offences relating to property. The most recent offence occurred in 2007 and involved the making of a false declaration under 33D of the Commission Act, that is, a declaration that he was not a prohibited person.

18 The respondent advises that with the exception of the material relating to his criminal history nothing adverse to EC was contained in any of the documents produced under section 14A notices, including those issued after the adjournment referred to at paragraphs [5] – [7] of these reasons.

19 EC testified that to his knowledge, other than the index offences no complaint has been made about his treatment of children.

20 Expert evidence A report prepared by psychologist, Dr Christopher Lennings dated 6 May 2008 was tendered by the respondent. Dr Lennings had been asked to provide an opinion on whether EC posed a risk to the safety of children and young people. Dr Lennings also gave oral evidence.

21 Dr Lennings employed a combination of actuarial and clinical assessment tools to assess EC. Employing STATIC-99 — an authoritative actuarial tool used to predict recidivism rates among known sex offenders by examining static risk variables (eg offender’s age, offending history) — EC scored two, placing him in a group of sex offenders with the same score, of whom it is expected that about 14 percent will re-offend, which constitutes according to Dr Lennings, a ‘medium-low’ risk.

22 Dr Lennings found no evidence of deviant sexual behaviour. He noted that EC’s criminal history was consistent with his self report of anti-social behaviour and minor rule breaking throughout his twenties. According to Dr Lennings EC’s history indicates that by about 1998 he seemed to have ‘cleaned up his act’.

23 Dr Lennings described the index offences as ‘a self interested action on [EC’s] part without any thought for the feelings of his victim’. He went on to note that EC’s behaviour was also ‘a product of psychological distress following the death of his mother, chronic maladjustment and evident immaturity’. Dr Lennings concluded that while some of these traits, namely, ‘significant impulsivity and immaturity’ persist and EC remains ‘marginalised in his adjustment’, the risk of a predatory offence against a young person was low despite EC’s ‘medium-low’ rating under STATIC-99. Dr Lennings concluded that while there was some risk of ‘occasional criminal behaviour’, a product of ‘impulsivity and thoughtlessness’, there was no risk that it might include violent offending.

24 Dr Lennings concluded that EC did not represent an appreciable risk of harm to children.

Findings and conclusions

25 Section 33J(2) of the Commission Act creates a rebuttable presumption that EC poses a risk to the safety of children. In determining whether that presumption has been rebutted, I am required to have regard to the matters listed at section 33J(3) of the Commission Act. It falls to EC to prove that he does not pose a risk to the safety of children.

26 The index offences are the only evidence of EC acting in an inappropriate way in relation to a child or young person. Committed nearly two decades ago when in the eyes of the law EC was little more than a child himself, the offences did not involve any threats or violence. At its highest it seems that EC failed to properly explore whether his victim genuinely consented to sexual intercourse. Given his youth and closeness in age to the girl, the offences do not, in my view, indicate that EC has a predilection to prey on or offend against children, but rather, as Dr Lennings believes, were the product of adolescent ‘impulsivity and thoughtlessness’.

27 There is no evidence to contradict EC’s self report that since the offences there has been no complaint or report of him acting in an inappropriate way in respect of children. While there is no independent evidence to corroborate that claim, it is consistent with the outcome of the respondent’s enquiries, which reveal that none of the Government agencies contacted, including the Department of Community Services, hold any material that is in any way unfavourable to EC except that relating to the index offences.

28 EC’s criminal history reveals that he committed a number of minor offences over an eight-year period. As noted, with the exception of the index offences none involved children and only one, the contravention of an apprehended domestic violence order, involved any suggestion of violent conduct. It is revealing as Dr Lennings points out that with the exception of the more recent offence of making a false statement, there is no evidence that this anti-social behaviour — a feature of EC’s life as a young man — continued past his late twenties.

29 The Tribunal has had the benefit of an opinion provided by a leading Australian psychologist expert in the field of recidivism among sex offenders. He concluded that EC poses no appreciable risk in terms of sexual or violent offending against children. That evidence coupled with the matters I am directed to consider by section 33J(3), which include the nature of the index offences; the passage of time since the offending conduct occurred; the closeness in age of EC and his victim; EC’s criminal history; together with the absence of any suggestion that EC might have conducted himself inappropriately with children since the subject offences leads me to conclude that EC has discharged the evidentiary burden and rebutted the presumption that he pose a risk to the safety of children.

30 For these reasons I have decided to grant EC’s application.

Orders

It is declared that the Commission for Children and Young People Act 1998 is not to apply to EC in respect of the charge of carnal knowledge (two counts) for which he was convicted in the Bathurst Children’s Court on 20 January 1992.