GY v Commission for Children and Young People (No. 2)

[2004] NSWADT 293

CITATION:	GY v Commission for Children and Young People (No. 2) [2004] NSWADT 293
DIVISION:	Community Services Division
PARTIES:	APPLICANT GY RESPONDENT Commission for Children and Young People
FILE NUMBER:	034030
HEARING DATES:	20/09/2004
SUBMISSIONS CLOSED:	10/11/2004
DATE OF DECISION:	12/17/2004
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Orders
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:	GY v Commission for Children and Young People [2004] NSWADT 123
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, barrister
ORDERS:	(I) It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to GY in respect of the offence of indecent assault on a child under 16 years of age, for which he was convicted on 7 May 1984 in the District Court at Sydney, on the following conditions: 1. He is not to seek, apply for or undertake any child related employment (as defined in s 3 of the Child Protection (Prohibited Employment) Act 1998) except teaching and associated work at an educational institution; 2. He is not to teach or undertake any work that brings him into contact with any girl under the age of 18 years; 3. He is to provide a copy of these Orders to any employer who or which employs him in child related employment and he is not to commence or continue the employment unless the employer agrees to designate the supervisor mentioned in Condition 4 and to have a supervisor receive the logs mentioned, in Condition 5; 4. He is in the course of any child related employment to subject himself to supervision by a supervisor designated by his employer; 5. He is each day in the course of any child related employment to submit to a supervisor designated by his employer a log recording: (a) any classes or lessons taught that day and the times and locations at which they were taught (b) any private consultations with students that day and the times and locations at which those consultations occurred; 6. He is not to commence any child related employment unless he has within a month before commencing that employment received counselling from a psychologist or psychiatrist (being a psychologist or psychiatrist accredited pursuant to the Child Sex Offender Accreditation Scheme established and administered by the Commission for Children and Young People) to whom he has provided a copy of these Orders and copies of the reports written about him by Dr Stephen Allnutt dated 6 October and 5 November 2003; 7. He is not to continue any child related employment unless for the duration of that employment he receives counselling at least once per month from a psychologist or psychiatrist (being a psychologist or psychiatrist accredited pursuant to the Child Sex Offender Accreditation Scheme established and administered by the Commission for Children and Young People) to whom he has provided a copy of these Orders and copies of the reports written about him by Dr Stephen Allnutt dated 6 October and 5 November 2003; (II) The Registrar of the Tribunal is to serve a copy of these orders on the Director-General of the Department of Education and Training.

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 These reasons concern the orders, if any, to be made under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”) in respect of GY. In GY v Commission for Children and Young People [2004] NSWADT 123 I found that GY had not established on balance that he was not a “real and material” risk to the safety of children at large but invited the parties to make further submissions on whether risk could be reduced to an acceptable level through conditions made pursuant to s 9(9).

2 GY indicated that he would consent to conditions, even though he maintained that he was not a risk to children and any restrictions were therefore simply unneccesary. He advised that he had no objection to a form of orders broadly based on the risk management plan set out in the report of Dr Stephen Allnutt dated 6 October 2003. In particular he indicated he had no objection to further counselling.

3 The Respondent maintained its original position that no orders ought be made under s 9(1) as it asserts it is not possible to formulate conditions to reduce GY’s risk to an acceptable level. It was submitted that the Tribunal could not be satisfied that GY met the test set out in s 9(4) even with conditions, given that his current apparently optimal position could deteriorate if any one of a number of risk factors, such as the breakdown of his current relationship, were to eventuate. Parts of the risk management plan put forward by Dr Allnutt, it was argued, would be difficult, if not impossible, to enforce.

4 At hearing the form of orders was discussed. Neither party resiled from their respective position on the need or otherwise for conditions or whether orders should be made under s 9.

5 Following this hearing Counsel for the Respondent, Mr Sinclair prepared a draft order to assist me in my deliberations. I understood that this did not indicate a softening of the Respondent’s original position.

6 I have accepted the proposed draft with one exception i.e. the types of educational institutions where GY can work. The draft proposed in essence that he work only in adult education. Given the other proposed conditions which signifcantly restrict the areas in which GY can work namely, in an educational institution where he does not teach (or work with) any girl under the age of 18 and is subject to close supervison, I am of the view that to also prohibit him from working in educational institutions other than those where the majority of students are over the age of 18, is unduly restrictive. As noted in GY v Commission for Children and Young People there is no evidence to indicate that GY represents a risk to boys.

7 For the reasons as stated I am satisfied that with the imposition of the following conditions GY does not pose “a real and unacceptable risk to children”. I am grateful for Counsel’s assistance in settling these orders.

Orders

(I) It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to GY in respect of the offence of indecent assault on a child under 16 years of age, for which he was convicted on 7 May 1984 in the District Court at Sydney, on the following conditions:
1. He is not to seek, apply for or undertake any child related employment (as defined in s 3 of the Child Protection (Prohibited Employment) Act 1998) except teaching and associated work at an educational institution

2. He is not to teach or undertake any work that brings him into contact with any girl under the age of 18 years

3. He is to provide a copy of these Orders to any employer who or which employs him in child related employment and he is not to commence or continue the employment unless the employer agrees to designate the supervisor mentioned in Condition 4 and to have a supervisor receive the logs mentioned, in Condition 5

4. He is in the course of any child related employment to subject himself to supervision by a supervisor designated by his employer

5. He is each day in the course of any child related employment to submit to a supervisor designated by his employer a log recording:

(a) any classes or lessons taught that day and the times and locations at which they were taugh

(b) any private consultations with students that day and the times and locations at which those consultations occurred

6. He is not to commence any child related employment unless he has within a month before commencing that employment received counselling from a psychologist or psychiatrist (being a psychologist or psychiatrist accredited pursuant to the Child Sex Offender Accreditation Scheme established and administered by the Commission for Children and Young People) to whom he has provided a copy of these Orders and copies of the reports written about him by Dr Stephen Allnutt dated 6 October and 5 November 2003

7. He is not to continue any child related employment unless for the duration of that employment he receives counselling at least once per month from a psychologist or psychiatrist (being a psychologist or psychiatrist accredited pursuant to the Child Sex Offender Accreditation Scheme established and administered by the Commission for Children and Young People) to whom he has provided a copy of these Orders and copies of the reports written about him by Dr Stephen Allnutt dated 6 October and 5 November 2003.

(II) The Registrar of the Tribunal is to serve a copy of these orders on the Director- General of the Department of Education and Training.