G v Commissioner, New South Wales Commission for Children and Young People - [2000] NSWADT 180

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CITATION: G -v- Commissioner, New South Wales Commission for Children and Young People [2000] NSWADT 180

DIVISION: Community Services Division

PARTIES:
APPLICANT
G
RESPONDENT
Commissioner, New South Wales Commission for Children and Young People

FILE NUMBER: 004016

HEARING DATES: 28/11/2000

SUBMISSIONS CLOSED: 11/29/2000

DATE OF DECISION:
12/01/2000

BEFORE: Hennessy N (Deputy President); Mason J - Member; Brennan D - Member

APPLICATION: Stay of proceedings

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998

CASES CITED:

REPRESENTATION: APPLICANT
In person
RESPONDENT
M Adofaci, solicitor advocate

ORDERS: The Tribunal stays the operation of any prohibition under the Act in respect of G pending the determination of this matter, subject to the following conditions: (i) At least two parents of children who Mr G is coaching must be present to supervise Mr G for the duration of each session in which he is engaged in coaching children under the age of 18 years. (ii) An attendance sheet recording the names, date and times of supervision and of the training sessions and signed by two parents in relation to each coaching session is to be provided to the Tribunal by Mr G at the hearing of this matter. (iii)Mr G must not accept any other children for coaching. (iv) The Tribunal to inform the President of the sporting club for which Mr G works as a volunteer coach, of these orders. (v) The stay order with these conditions does not take effect until at least two parents have confirmed in writing to the Tribunal, their willingness to supervise Mr G.

1 This is an application for a stay of the operation of a prohibition under s 9(6) of the Child Protection (Prohibited Employment) Act 1998 (the Act). The Act makes it an offence for a person who has been convicted of a serious sex offence to apply for, undertake, or remain in child related employment. It is also an offence for an employer to commence employing or continue to employ such a person in child related employment. (See s 6 and 8 of the Act.)

2 In these reasons we refer to the applicant as “Mr G”. In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person to whom any proceedings before the Tribunal relate. (Administrative Decisions Tribunal Act 1997 s 126(1).) 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 G 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. The official copy of the orders provided to the parties will include the name of the applicant.

3 On 23 November 2000 Mr G filed an application with the Tribunal seeking a declaration that the Act should not apply to him in relation to the offences of indecent assault for which he was convicted in August 1986. Without such a declaration, Mr G may have been committing an offence if he continued coaching children in athletics.

4 On 27 November 2000, Mr G applied for a stay of any prohibition under the Act, pending final determination of his application by the Tribunal. The hearing was conducted on 28 November 2000 by teleconference. All parties and each Tribunal member was connected by phone. Mr G gave evidence but did not take an oath or affirmation. This was an oversight on the Tribunal’s part. Normally a witness, even on the phone, is asked to swear an oath or affirmation. Given the provisions of s 73(3) of the Administrative Decisions Tribunal Act 1997 which allow the Tribunal to act “without regard to legal technicalities or legal forms”, we do not regard the lack of sworn evidence as particularly significant.

5 To be effective, stay applications must be determined as soon as possible after they are made. This application was made on 27 November 2000. The respondent had notice of the stay on the day it was made. The Tribunal proceeded to a hearing on 28 November 2000 on the basis of the evidence available at the time. Not to do so would defeat the purpose of such an application which is to secure the effectiveness of the hearing by preserving the status quo pending a final determination.

6 After the hearing the Tribunal members conferred and decided to grant the stay as long as we could be satisfied that appropriate conditions could be put into place. The Tribunal, through the registry staff, requested that each party provide submissions as to the nature and extent of such conditions should they be imposed. The respondent provided a written submission in response to this request, relevant portions of which are discussed below.

7 Taking into account all the evidence and submissions of the parties, we have decided to grant a stay subject to certain conditions. Our reasons are set out below.

Relevant legislative provisions

8 Section 9 of the Act allows the Tribunal to make declarations concerning prohibited persons. In particular, s 9(1) allows the Tribunal to declare that the Act does not apply to a person in respect of a specified offence.

9 Section 9(4) and 9(5) set out the tests to be applied by the Tribunal when making an order “under this section”. These provisions state that:

10 Pursuant to s 9(9), an order may be made subject to conditions.

11 Section 9(6) allows the Tribunal to stay the operation of a prohibition under the Act. That provision states that:

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.

12 An issue of statutory interpretation arises in relation to these provisions. That issue is whether the tests in s 9(4) and s 9(5) also apply to the determination of a stay application under s 9(6) and whether other considerations apply. Section 9(4) and s 9(5) are expressed as applying to “an order under this section”, that is s 9. An order staying the operation of a prohibition is an order under s 9 of the Act. However, stay applications are typically subject to different considerations from those which apply to final determinations. For example, s 60 of the ADT Act, which applies to reviewable decisions, not to original decisions, sets out the considerations to be applied in determining a stay application. These considerations are not the same as the considerations which are relevant to the final determination of an application.

13 Another factor which suggests that parliament may not have intended that identical tests be applied to the stay application as to the final determination, is the wording of s 9(8) of the Act. That provisions states that:

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.

14 If an “order under this section” refers to both a stay order and a final declaration, then s 9(8) would have the effect that a refusal of a stay order would prevent an application for a declaration from proceeding, unless an order to the contrary is made. It seems unlikely that this was parliament’s intention when enacting this provision.

15 The Tribunal’s conclusion on the basis of this analysis is that while the factors set out in s 9(4) and (5) are applicable to the determination of a stay, s 9(5) allows the Tribunal to take into account such other matters as it considers relevant. In the context of a stay application, these factors include:

16 These are the factors listed in s 60 of the ADT Act which apply to reviewable, but not to original, decisions. They are relevant, in our view, to the determination of the stay application currently before the Tribunal.

Issues

17 The questions which the Tribunal must ask itself in relation to these proceedings are:

Evidence

18 The following documentary evidence was before the Tribunal:

19 The character references reveal that Mr G is a dedicated and competent athletics coach and official who has been involved in the sport for over 20 years. Three of the four referees disclose that they know of Mr G’s convictions. In relation to the fourth, Mr G gave evidence that the referee concerned, a parent of a child he coaches, is also aware of the convictions.

20 Mr G gave oral evidence that he was a primary school teacher for 24 years. In 1986, when he was 43 years old, he pleaded guilty to 8 counts of indecent assault and was convicted in the District Court. He was sentenced to 2 years imprisonment on each count. He served just over 13 months in prison and resigned as a teacher. Mr G was questioned about the nature of the offences. He said that they related to two girls aged approximately 12 years and 2 girls aged approximately 8 years who were students at the school where he taught. He said that he “fondled” their shoulders and their “lap area”. When asked if this referred to their genital area Mr G said ‘Yes.’

21 Mr G underwent counselling while in prison and said that the counsellor did not recommend further counselling on his release. After his probation and parole period expired he resumed coaching children athletics. Mr G was unemployed for just over 12 months and then obtained work as a clerk. He continued that work for 8 years before resigning nearly 4 years ago. He is currently 58 years old.

22 Mr G said that he has been involved with a sports club for several years, doing voluntary work. He is the treasurer of the club and officiates at carnivals. Mr G is the Championship Officer and Records officer for a regional athletics association. In that capacity he organises the carnivals and usually sits in a room isolated from the grounds where he either announces events or engages in record keeping and managing the event.

23 He also coaches athletics to between 12 and 15 children one or two days a week. These children participate in carnivals and other competitions at various levels ranging from local, to regional and state competitions.

24 According to Mr G there is more than one parent present at every training session he conducts. In particular Mr B, who provided a reference dated 12 October 2000, is present at the coaching sessions. Mr G nominated three other parents who are always present at coaching sessions. He said he is virtually never in a situation where he is coaching only one child or a parent is not present. He believes that the parents who stay for the training sessions would be prepared to “supervise” him during those times.

25 There are several competitions coming up in December and January in which the children Mr G coaches will be competing. According to Mr G, many of the children would be disappointed and disadvantaged if he was unable to continue to coach them during this period. He said that it is extremely difficult to confine his coaching to adults because most over 18 year olds continue with the same coach they had as a child.

26 Another activity in which Mr G is engaged is supervising people who are subject to community service orders to do work at a community athletics field.

Applicant’s submissions

27 Mr G submitted that a stay should be granted because the children he coaches would be unable to continue their preparation for the events that they have entered. In addition, he is confident that parents who attend training sessions would be prepared to supervise those sessions. In Mr G’s view his activities involving officiating at carnivals does not come within the definition of “child related employment” in the Act.

Respondent’s submissions

28 In relation to the seriousness of the offence, the respondent submitted that given the sentence imposed by the District Court of 2 years imprisonment for each offence, the offences must have been more serious than disclosed by Mr G. The respondent submitted that, in the absence of a complete and accurate record of the offences for which the applicant was convicted, the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

29 In relation to the ages of Mr G and the victims, Mr G was 43 at the time of the offences and the children were 8 and 12. According to the respondent this is a significant difference which is exacerbated by the fact that Mr G was in a position of authority as a teacher at the school. In the respondent’s view, Mr G poses a risk to the safety a children and a stay order should not be granted.

30 The respondent’s submissions in relation to any conditions which it would be appropriate to impose if a stay was granted are set out below.

Reasons and Decision

31 Serious sex offence. The first issue is whether Mr G has been “convicted” of a “serious sex offence” within the meaning of the Act. Under s 5(1) of the Act a “prohibited person” is defined as meaning “a person convicted of a serious sex offence . . .” Such an offence is defined in s 5(3)(a) of the Act to include:

“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 . . .”

32 The offence was committed in New South Wales and was clearly punishable by imprisonment of 12 months or more since Mr G was sentenced to two years imprisonment in relation to each offence.

33 Child related employment. The second issue is whether Mr G is in “child-related” employment as defined in s 3 of the Act. The relevant parts of s 3 are as follows:

(a) performance of work as a volunteer for an organisation.

34 There was no specific evidence that Mr G’s coaching activities were performed as a volunteer for the sporting club in which he is involved, but we are prepared to find on the basis of Mr G’s general involvement in the club, that he was performing those coaching services as a volunteer for that club, rather than privately. This issue will need to be further clarified at the hearing.

35 In relation to Mr G’s other voluntary activities as an official at athletics events and supervising adults performing community services orders, we are satisfied on the basis of his evidence, that these activities do not “primarily involve direct contact with children”. Consequently they do not fall within the definition of “child-related employment.”

36 Determination of the stay. The final issue is whether, taking into account the factors set out in s 9(4) and 9(5), including the factors set out above at paragraph 14, a stay should be granted and, if so, whether it should be subject to any conditions.

37 Seriousness of the offences. The Tribunal had before it a copy of the New South Wales Police Service criminal history relating to the applicant. Apart from the fact that there were 8 counts of indecent assault listed rather than 4, this record accords with the applicant’s description of the offences for which he was convicted. The respondent maintains that the records have not been confirmed by the Department of Corrective Services and in those circumstances the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety of children. While the records we have may not be the “best” evidence of the applicant’s convictions, the nature of a stay hearing is that a determination must be made on the basis of the evidence available. We are satisfied on the basis of that and other relevant evidence that the requirements for a stay have been met. If further evidence comes to light, the respondent is at liberty to apply for a variation or revocation of the stay order.

38 The Tribunal accepts that these offences are serious, although they are not of the most serious kind. The length of the sentences (2 years on each count) reflects the District Court judge’s view of the magnitude of the offences.

39 Ages and age difference. We agree with the respondent’s submission that there was a significant age difference between the applicant and the victims. This difference, along with the fact that he was a teacher at the school, put him in a position of considerable power in relation to the victims.

40 Seriousness of criminal record. There was no evidence of any other criminal record and Mr G denied having been charged with or convicted of any other offence.

41 Other relevant matters. Other relevant matters in the context of a stay application include: the interests of any persons who may be affected by the determination; any submissions made by or on behalf of the respondent; and the public interest. Some of these factors overlap with factors which have already been considered.

42 The interests of Mr G are not as significant in this case as those of the children he coaches. As the respondent pointed out, Mr G is engaged in voluntary work and apart from the satisfaction that he obviously derives from these activities he will not suffer any particular hardship if he is unable to continue with the coaching. The children, on the other hand, are relying on him to continue coaching them so that they can perform at their best in athletic events over the next few months. The Act does not require that there be an urgent reason for the granting of a stay. As long as all the factors relevant to the granting of a stay are made out, there is no further requirement for urgency.

43 The other interest of the children is, of course, that Mr G does not pose a risk to their safety. Consideration of this interest is reflected in s 9(4) and s 9(5) of the Act. Similarly, the public interest in this case is that Mr G does not pose a risk to the safety of children in relation to any child related employment.

44 In summary, Mr G committed several serious sex offences on young children while he was a 43 year old teacher. He served a term of imprisonment. Factors which satisfy us that despite these offences, Mr G would not pose a risk to the safety of children (as long as certain conditions are imposed) are that;

45 We were mindful when making this decision that the Act allows for orders to be made subject to conditions. Given the factors set out above, we are satisfied that a stay should be granted subject to certain conditions. The respondent submitted that several conditions should be imposed including that each parent should be advised in detail of the applicant’s criminal history, that each parent should be advised of the conditions of the stay, and that each parent should indicate their willingness to supervise the applicant and to complete and sign an attendance record. Further conditions suggested by the respondent were that the applicant not engage any other children for coaching, that he not provide coaching unless at least three children are present and that he agree to obtain an assessment from an appropriately qualified practitioner in relation to his risk as to the safety of children.

46 While we agree with some of the conditions suggested by the respondent, others are onerous and/or unnecessary. Mr G has given evidence that several of the parents of children he coaches know of his criminal record. We do not consider it essential in order to protect the safety of children, that every parent of every child he coaches be made aware of the details of those offences. Given Mr G’s long period of non-offending and the confidence that parents and colleagues have in him, we are satisfied that the children’s safety will not be at risk as long as Mr G is appropriately supervised by at least two parents at every coaching session.

47 In order to implement this condition we propose that Mr G nominate any number of parents who are willing to undertake this task and provide their names and addresses to the Tribunal. The Tribunal will then write to those parents advising them of the details of Mr G’s criminal history, advising them of the terms of the stay order and asking them to agree to supervise Mr G during coaching sessions. Those parents will then be asked to write to the Tribunal confirming their willingness to supervise Mr G. Mr G should then prepare an attendance sheet and for each coaching session in which he is involved he must ask the two supervising parents to sign the sheet with the date, the times they commenced supervision, the times they ceased supervision and their signature. The time the coaching session commenced and ceased should also be recorded. Mr G is to present this attendance record to the Tribunal at the hearing. The stay order with these conditions does not take effect until at least two parents have confirmed in writing to the Tribunal, their willingness to supervise Mr G.

48 It is also a condition of the stay that Mr G does not accept any other children for coaching and that he advise the President of the sporting club for which he performs work as a volunteer coach, of these orders.

Orders

49 The Tribunal makes the following orders:

50 Pursuant to s 9(10) of the Act the Tribunal will notify the Commissioner of Police of the terms of the order.

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Citations

G v Commissioner, New South Wales Commission for Children and Young People [2000] NSWADT 180

Most Recent Citation

AG v Commission for Children and Young People [2001] NSWADT 163

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CITATION:	G -v- Commissioner, New South Wales Commission for Children and Young People [2000] NSWADT 180
DIVISION:	Community Services Division
PARTIES:	APPLICANT G RESPONDENT Commissioner, New South Wales Commission for Children and Young People
FILE NUMBER:	004016
HEARING DATES:	28/11/2000
SUBMISSIONS CLOSED:	11/29/2000
DATE OF DECISION:	12/01/2000
BEFORE:	Hennessy N (Deputy President); Mason J - Member; Brennan D - Member
APPLICATION:	Stay of proceedings
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT M Adofaci, solicitor advocate
ORDERS:	The Tribunal stays the operation of any prohibition under the Act in respect of G pending the determination of this matter, subject to the following conditions: (i) At least two parents of children who Mr G is coaching must be present to supervise Mr G for the duration of each session in which he is engaged in coaching children under the age of 18 years. (ii) An attendance sheet recording the names, date and times of supervision and of the training sessions and signed by two parents in relation to each coaching session is to be provided to the Tribunal by Mr G at the hearing of this matter. (iii)Mr G must not accept any other children for coaching. (iv) The Tribunal to inform the President of the sporting club for which Mr G works as a volunteer coach, of these orders. (v) The stay order with these conditions does not take effect until at least two parents have confirmed in writing to the Tribunal, their willingness to supervise Mr G.