F v Commissioner, New South Wales Commission for Children and Young People

[2001] NSWADT 26

CITATION:	F -v- Commissioner, New South Wales Commission for Children and Young People [2001] NSWADT 26
DIVISION:	Community Services Division
PARTIES:	APPLICANT F RESPONDENT Commissioner, New South Wales Commission for Children and Young People
FILE NUMBER:	004014
HEARING DATES:	09/02/2001
SUBMISSIONS CLOSED:	02/09/2001
DATE OF DECISION:	02/09/2001
BEFORE:	Hennessy N (Deputy President); Gelin B - Member; Brennan D - Member
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:
REPRESENTATION:	APPLICANT In person RESPONDENT A Johnson, solicitor
ORDERS:	This Act is not to apply to Mr F in respect of the offence of indecent assault on a female under the age of 16 years for which he was convicted in New South Wales on 12 November 1967.

1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the CP(PE) Act) is not to apply to Mr F in respect of the offence of indecent assault on a female under the age of 16 years for which he was convicted in New South Wales on 12 November 1967. Under s 9(6) of the CP(PE) Act, the Tribunal stayed the operation of a prohibition under the Act on 15 November 2000 pending further determination by the Tribunal. The hearing of the application for a declaration was conducted on 9 February 2001. One tribunal members was connected by phone to the hearing room.

2 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).)

3 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 “Mr F”. The official copy of the orders provided to the parties includes the name of the applicant.

4 Mr P is applying for a declaration that the Act does not apply to him, because he wants to take up a position as a driver with a bus company. He would be transporting children.

Legislative provisions

5 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.

6 Subject to certain defences and transitional provisions, the CP (PE) 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.

7 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.

8 “Serious sex offence” is defined in s 5(3), s 5(4) and s 5(5) as follows:

(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.

9 Section 9 of the CP (PE) 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.

(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:

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

10 There are two questions which must be answered before the Tribunal can determine whether a declaration should be granted The questions are:

(a) is Mr F a prohibited person within the meaning of that term in s 5 of the CP(PE) Act?

(b) does Mr F pose a risk to the safety of children taking into account the provisions of s 9(5) of the CP(PE) Act?

Evidence

11 The documentary evidence in this matter consists of:

• Mr F’s application to the Tribunal;
• a bundle of documents provided by the Attorney General’s Department relating to Mr F’s conviction; (Exhibit A) and
• three folios provided by Department of Community Services in relation to probation (Exhibit B).

12 Mr F admitted that he was convicted of the offence of indecent assault on a female under the age of 16 years on 12 November 1967. He was released on probation for 2 years to remain of good behaviour and to pay compensation of $9.00 and not associate with the victim. He was 16 years old at the time of the conviction. Mr F is now 49 years old. The circumstances of the offence are not in dispute. Briefly, they are that Mr F and the victim (a 15 year old girl), stayed out overnight and had broken into a number of premises and stolen food and other items. They had slept in one of the houses and, at the time, Mr F admitted to “interfering” with the female on numerous occasions while together. It was not alleged that sexual intercourse had taken place.

13 Mr F was convicted of five counts of break, enter and steal in relation to the same incident and was released on probation on those charges as well.

14 In 1988 a charge against Mr F of assaulting a female, was dismissed under s 556A of the Crimes Act 1900.

Reasons and decision

15 The first question is whether Mr F is a prohibited person within the meaning of that term in s 5 of the CP(PE) Act? Under s 5(3)(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, is a “serious sex offence.” Mr F was convicted under s 76 of the Crimes Act 1900 (now repealed). That section states that:

Whosoever assaults any female and, at the time of, or immediately before or after such assault, commits any act of indecency upon or in the presence of such female, shall be liable to imprisonment for four years, or, if the female be under the age of sixteen years, to penal servitude for six years.

16 This offence constitutes a serious sex offence because it was punishable by penal servitude for 12 months or more. It does not cease to be a “serious sex offence” because s 76 has been repealed. Section 5(4) of the CP(PE) Act states that:

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.

17 The conduct constituting an offence under s 76 is still an offence in New South Wales pursuant to s 61L of the Crimes Act 1900. That section states that:

Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

18 Consequently, the offence for which Mr F was convicted is a “serious sex offence.”

19 The second question is, does Mr F pose a risk to the safety of children taking into account the provisions of s 9(5) of the CP(PE) Act?

20 There is no evidence that Mr F poses a risk to the safety of children. The offence with which he was convicted was not the most serious kind of sexual offence. The offence did not involve sexual intercourse and occurred between two young people who were close in age. Mr F was only 16 years old at the time of the offences. Mr F’s overall criminal record is not of concern. In the Tribunal’s view the evidence establishes that Mr F does not pose a risk to the safety of children.

Order

This Act is not to apply to Mr F in respect of the offence of indecent assault on a female under the age of 16 years for which he was convicted in New South Wales on 12 November 1967.

21 The Tribunal shall notify the Commissioner of Police of the terms of this order.