EC v Commission for Children and Young People

[2003] NSWADT 65

CITATION:	EC -v- Commission for Children & Young People [2003] NSWADT 65
DIVISION:	Community Services Division
PARTIES:	APPLICANT EC RESPONDENT Commission for Children & Young People
FILE NUMBER:	024042
HEARING DATES:	24/2/03
SUBMISSIONS CLOSED:	02/24/2003
DATE OF DECISION:	04/02/2003
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
CASES CITED:	Commission for Children and Young People v V 2002 NSWSC 949.
REPRESENTATION:	In person M Allars, Barrister
ORDERS:	Orders made: 24 February 2003; 1. The Tribunal declares that the Child Protection (Prohibited Employment) Act 1988 is not to apply to the applicant in respect of the offence of carnal knowledge for which he was found guilty on 16 July 1963 at Bankstown Children's Court.; 2. The Tribunal shall notify the Commissioner of Police of the terms of this order

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,
(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

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, we have 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 we refer to the applicant as "EC." The official copy of the orders provided to the parties includes the name of the applicant.

3 The applicant who is now 57 years of age has a conviction for a sexual offence within the meaning of the Child Protection (Prohibited Employment) Act 1998 (“the Act”) which occurred in 1963 when he was aged 17 years of age. As a consequence he is prevented from engaging in child-related employment unless the Tribunal declares otherwise. The applicant now seeks a declaration in respect of casual work in training high school children in radio production.

Issues
4 There are two questions that must be answered in order for the Tribunal to determine whether a declaration should be granted. These are:

a) Does EC pose a risk to the safety of children taking into account the provisions of s.9(5) of the Act?
b) Should any conditions attach to any declaration the Tribunal makes in favour of the applicant?
Criminal history
5 The applicant was charged with carnal knowledge of a 15 year old girl on 29th June 1963. She was not a school-girl but had willingly accompanied 12 school boys including the applicant into the school grounds after school classes and 4 of these boys had consensual sexual contact with her. This girl provided the applicant with oral sex. Sexual intercourse with the applicant did not commence because of the arrival of the police.

6 The applicant pleaded guilty at Bankstown Children’s Court and was given a sentence of 12 months probation.

7 The applicant was charged and acquitted with the commission of carnal knowledge of a 17 year old girl that was alleged to have occurred on 17th August 1963.

8 The applicant was charged with the commission of carnal knowledge that was alleged to have occurred on 27th November 1966. The Attorney General ordered that no bill be filed in respect of this charge.

9 Between 1963 and 1966 the applicant was convicted for various non-sexual criminal offences being car stealing, negligent driving, offensive behaviour (street fight), and goods in custody.

10 The applicant has had no criminal charges or convictions for 36 years.

Legislative provisions
11 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.

12 Subject to certain defences and transitional provisions, the 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.

Section 6(1) states that:
A prohibited person must not:
(a) apply for child-related employment, or
(b) undertake child-related employment, or
(c) remain in child-related employment.
Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both.
(2) Defence
It is a defence to a prosecution for an offence against this section if the defendant establishes that he or she did not know,
at the time of the commission of the offence, that the employment concerned was child-related employment.

13 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 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.

14 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) of the Act. There is no dispute in this case that the offence of sexual assault for which CU has been convicted on 9 February 1984 is a “serious sex offence” or that CU is “a prohibited person”.

15 "Child" and "child-related employment" are defined in s 3:

16 Subject to certain transitional provisions, the Act also makes it an offence for an employer to do certain things including knowingly employing a prohibited person in child-related employment.

17 Section 9 of the Act allows the Tribunal to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that section 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.
(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:
the seriousness of the offences with respect to which the person is a prohibited person,
(a1) the period of time since those offences were committed,
(b) the age of the person at the time those offences were committed,
(c) the age of each victim of the offences at the time they were committed,
(d) the difference in age between the prohibited person and each such victim,
(d1) the prohibited person’s present age,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.
(6) On an application under this section, the relevant tribunal may 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 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 Commissioner of Police of the terms of the order.
(11) The following applies to proceedings before the Administrative Decisions Tribunal under this section:
(a) the Tribunal may not award costs.
(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings.
18 When the matter first came before the Tribunal on 15 January 2003, the applicant answered various questions put to him by the respondent which provided the respondent with information to conduct inquiries it thought appropriate. This information included the following:
a) The applicant stated that his wife had previously owned a pre-school facility but during this time he rarely had contact with any of the children.
b) The applicant had previously participated in the Commonwealth Employment Program with other workers aged 16 to 46 years.
c) The applicant had previously participated in a Commonwealth CIS Scheme where he twice presented “the history of popular music” to persons aged 17 years or older.
d) From 1968 to 1970 the applicant worked at Butlin’s Holiday Camp in the United Kingdom supervising 16 and 17 year olds.
e) The applicant previously built a skate board ramp for the local children.
f) The applicant coached an under 9 soccer team in 1986 to 1987.
g) The applicant now works as a casual producer with a community radio station and through the Department of Technical and Further Education trains high school children for 4 hours per week in radio production. The older children are unsupervised and the youngest, aged 14 years, have their parents sitting outside the studio.
19 The applicant stated that when he was arrested for the offence of carnal knowledge to which he ultimately pleaded guilty, corrupt police had systematically beaten him until he signed a confession. He stated that he was subsequently targeted for similar offences and although they again assaulted him he was determined to withstand this intimidation and resisted signing any further admissions. The Tribunal explained to the applicant that as a conviction had been recorded on 16 July 1963 the Tribunal had no power to set aside that conviction and had to treat that as a conviction for a serious sexual assault which made him a prohibited person. The applicant stated that he understood and accepted this.

20 The application was adjourned from 15 January to 30 January for a further telephone hearing at which time as the applicant was not answering his telephone. Consequently the matter was adjourned until 13 February.2003. The Tribunal gave it’s decision on 13 February 2002 and the respondent subsequently requested the tribunal to provide written reasons.

Respondent’s evidence
21 On 13 February 2003 the respondent6’s representative informed the Tribunal that he had instructions not to oppose an unconditional final order. He tended various documents form the Attorney General’s Department pursuant under s14A of the Commission for Children and Young People Act 1988 which provided some information in respect of the charge of carnal knowledge of which he was convicted and the charges of carnal knowledge of which he was either acquitted or no billed. A copy of these document had not been served on the respondent who stated he did not need an adjournment to receive and read these documents. The tribunal suggested to the applicant that he should reconsider consenting to the tender of these documents without having the opportunity of reading them if either the respondent’s representative or the Tribunal suggested that anything therein might cause his application any difficulties or concern, and the respondent agreed to this course. Neither the respondent nor the Tribunal after the presiding member had read the documents raised any aspect thereof that would have caused the applicant any difficulties or concern.

Reasons and decision
22 Risk has been described by Young CJ in Equity as follows: “One would exclude fanciful or theoretical risks but what one is looking for is whether in all the circumstances there is a real or appreciable risk in the sense that a risk that is greater than any adult preying on a child.” His Honour went on to say “there is two-tiered decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular way, one focus is the serious sex offence and its circumstances, the second is the current danger, if any, posed by the applicant to children. Sub-section (5) deals mainly with the first focus that is, that the Tribunal must evaluate the seriousness of the offences taking onto account the age of the applicant when the offences were committed, the age of the victim at the time and the difference in ages. The second involves the assessment of the applicant’s character now which includes the seriousness of the prohibited person’s total criminal record, a matter mentioned by 5(e) and any other matter which the Tribunal considers relevant. Sub-section (5) then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime; and (b) the applicant’s current character all these matters must come together when the Tribunal is making a decision as to whether to exempt the person from the effect of the Act. The decision is then made on the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised unless there was a good reason not to exercise it. Commission for Children and Young People v V 2002 NSWSC 949.

23 The Tribunal must apply section 9(5) of the Act and the principles set out by YoungCJ-

(a)the seriousness of the offences with respect to which the person is a prohibited person.
The offence was of the lower scale of sexual offences taking into account the victim’s consent and the age of the applicant at the time.
(a1) the period of time since those offences were committed.
(b) the age of the person at the time those offences were committed.
(c) the age of each victim of the offences at the time they were committee.
(d) the difference in age between the prohibited person and each such victim.
(d1) the prohibited person’s present age.
The applicant was a minor aged 17 years and the victim was aged 15 years. There was only 2 years difference in age. The applicant is now aged 57 years.
(e) the seriousness of the prohibited person's total criminal record.
The applicant has only one conviction for a sexual offence although he faced another charge of carnal knowledge alleged to have been committed on 17th August he was acquitted of this. Although he faced a further charge of carnal knowledge, the Attorney General declined to proceed to a trial, the most obvious implication that can be drawn from this action of the Attorney General is that there was no reasonable prospect of a jury convicting him. Accordingly the Tribunal should not place any weight on these matters and nor did the respondent suggest that it should.
The applicant had various convictions for non-sexual offences which were all committed between 1963 and 1966 when he was aged between 17 and 21 years. The Tribunal concludes that the applicant was involved in criminality in his late teens and early twenties which fortunately he has long since outgrown.
(f) such other matters as the tribunal considers relevant.
The applicant has had no charges or convictions for 36 years. He has been usefully employed in community activities and his application is not opposed by the respondent.

24 Other than one conviction for carnal knowledge 40 years ago there is no evidence to suggest that the applicant is a risk to children. No conditions to any order were suggested by the respondent and the Tribunal can find no basis for imposing any. The Tribunal can find no good reason not to exercise its discretion in favour of the applicant.

Orders
(1) The Tribunal declares that the Child Protection (Prohibited Employment) Act 1988 is not to apply to the applicant in respect of the offence of carnal knowledge for which he was found guilty on 16 July 1963 at Bankstown Children’s Court.