LP v Commission for Children and Young People

[2009] NSWADT 79

CITATION:	LP v Commission for Children and Young People [2009] NSWADT 79
DIVISION:	Community Services Division
PARTIES:	APPLICANT LP RESPONDENT Commission for Children and Young People
FILE NUMBER:	094006
HEARING DATES:	8 April 2009
SUBMISSIONS CLOSED:	8 April 2009
DATE OF DECISION:	15 April 2009
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Jurisdiction
LEGISLATION CITED:	Commission for Children and Young Persons Act 1998 Crimes Act 1900 Interpretation Act 1987
CASES CITED:	Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Grey v Pearson (1857) 6 HLC 61
REPRESENTATION:	APPLICANT P Tedmanson, agent RESPONDENT M Higgins, barrister
ORDERS:	The Tribunal does not have jurisdiction to determine LP’s application as LP is not a prohibited person as defined by the Commission for Children and Young Persons Act 1998.

1 The applicant, who will be referred to by the pseudonym, LP, in these reasons, has applied to the Tribunal for an order pursuant to s 33I of the Commission for Children and Young Persons Act 1998 (the Commission Act) declaring that Division 2 of Part 7 of that Act does not apply to him.

2 On 24 September 1999, LP was convicted of an offence of maliciously inflicting grievous bodily harm: s 35(b) Crimes Act 1900. The victim of this offence, which had been committed in August 1998, was a five month-old child. He was sentenced in the District Court and placed on a bond for three years with a condition that he be supervised by the Probation Service and undergo psychiatric treatment.

3 The question for determination is whether the Tribunal has jurisdiction to entertain the application which turns on whether LP is a ‘prohibited person’ for the purposes of the Commission Act: s 33B. In turn, the answer to that question depends on whether his offence was a ‘child-related personal violence offence’ as defined in the Commission Act: s 33B(3).

4 In my opinion, the Tribunal does not have jurisdiction to deal with the application for the following reasons.

5 The Tribunal’s jurisdiction to make the order sought by LP arises only in respect of ‘prohibited persons’.

6 For present purposes the relevant definition of a ‘prohibited person’ is ‘a person convicted of a… child-related personal violence offence, whether before or after the commencement of this sub-section’: s 33B(1).

7 Section 33B(3)(a) then relevantly defines a ‘child-related personal violence offence’ as ‘an offence committed by an adult involving intentionally wounding or causing grievous bodily harm to a child’ [emphasis added].

8 It is submitted by counsel for the Commission for Children and Young People that the proper construction of that definition is to read the adverb ‘intentionally’ as applying both to ‘wounding’ and to ‘causing grievous bodily harm to a child’. The definition would then read ‘an offence committed by an adult involving intentionally wounding or [intentionally] causing grievous bodily harm to a child.’ He argues that any other interpretation would lead to an absurd result.

9 I agree with that submission. The fundamental rule of statutory construction under the common law is that a statute is to be interpreted according to Parliament’s intentions which are to be found in an examination of the language used in the statute. That language must be given its ordinary and natural meaning: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-2 per Higgins J.

10 That literal approach, however, is qualified by what is known as ‘the Golden Rule’ of statutory construction:

[In] construing … statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further’: Grey v Pearson (1857) 6 HLC 61 at 106 per Lord Wensleydale.

11 Like virtually all serious crimes, the crime of maliciously inflicting grievous bodily harm consists of a physical element – the unlawful infliction of grievous bodily harm – and a mental element. Somewhat unusually, the mental element may be either intention or criminal recklessness.

12 At the time LP committed his offence, the term ‘maliciously’ was defined s 5 of the Crimes Act as follows:

Every act done of malice…or done without malice but with indifference to human life or suffering, or with intent to injure some person… or done recklessly or wantonly, shall be taken to have been done maliciously.

13 Under the criminal law a person acts recklessly if, having foresight of the seriousness of the possible consequences for life or limb of his or her actions or omissions, but without intending that harm, he or she nevertheless acts in such a way as to bring about the harm foreseen. Another way of putting this is that the person has been criminally negligent.

14 In my opinion, s 33B(3) of the Commission Act, if given its natural and ordinary meaning, was intended by Parliament only to catch offences in which the mental element of the offence is an intention on the part of the offender to commit the relevant harm. Had it been otherwise, it is to be expected that a specific reference to offences under s 35 of the Crimes Act would have been included in the definition of ‘prohibited person’ or some reference made to acts of malice, including reckless acts. One might have found a definition such as ‘intentionally or recklessly’ or ‘intentionally or maliciously’. However, such a definition does not appear.

15 Section 33 of the Interpretation Act 1987 requires that the purposes of the legislation be taken into account when construing its provisions and s 34 allows for reference to be made to extrinsic materials in conducting that exercise.

16 Although I do not think it strictly necessary, I have referred to the Second Reading speech in which the then Minister for Community Services and Youth, the Hon Reba Meagher stated,

‘This bill will now also ensure that those who have been convicted as an adult of intentionally causing grievous bodily harm to a child will also be prohibited from working in child-related employment’: Hansard 15 November 2005, p. 19699.

17 No mention was made by the Minister of recklessness but she specifically stated that the bill was not intended to catch acts of negligence. In my view, those statements support the view that I have expressed above.

18 It follows that LP is not a ‘prohibited person’ under the Commission Act and therefore the Tribunal has no jurisdiction to deal with his application. As a consequence it is not an offence for LP to apply for, undertake or remain in child-related employment. Nor is it an offence for an employer to employ LP in child-related employment.