MQ v Commission for Children and Young People (No 2)

[2005] NSWADT 184

CITATION:	MQ v Commission for Children and Young People (No 2) [2005] NSWADT 184
DIVISION:	Community Services Division
PARTIES:	APPLICANT MQ RESPONDENT Commission for Children and Young People
FILE NUMBER:	044015
HEARING DATES:	14/10/2004, 17/03/2005, 24/03/2005
SUBMISSIONS CLOSED:	03/24/2005
DATE OF DECISION:	08/09/2005
BEFORE:	Smyth M - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:	MQ v Commission for Children and Young People [2004] NSWADT 279
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, barrister
ORDERS:	It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to MQ in respect of the offences of carnal knowledge on a child of 15 years for which he was convicted in the Campsie Local Court on 17 July 1978 and of two counts of carnal knowledge with a child of 13 years for which he was convicted in the Sydney District Court on 27 May 1980, on the following conditions: (i) 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) that will bring him into direct contact with any girl under 18 years (ii) He is to provide a copy of these Orders to any employer who employs him in child related employment.

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

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 MQ. In MQ v Commission for Children and Young People [2004] NSWADT 279 I found that MQ had failed to establish on balance that he was not a “real and material” risk to the safety of female children.

2 The parties were provided with an opportunity to provide further evidence and submissions regarding on whether the risk could be reduced to an acceptable level through conditions made under s 9(9).

Evidence and submissions regarding conditions

3 MQ indicated that he would comply with any conditions even though he maintained that he was not a risk to children.

4 The Respondent maintained its original position that no orders ought be made under s 9(1) asserting that it is not possible to formulate conditions to reduce MQ’s risk to an acceptable level. The respondent submitted that the Tribunal could not be satisfied that MQ met the test set out in s 9(4), even with conditions. The respondent argued that a more appropriate course of action would be to consider reducing the time period to lodge a new application to provide the Applicant with an opportunity to obtain the counseling recommended by Dr Allnut, an expert who provided evidence at the hearing on 14 October 2004.

5 Further evidence was filed by MQ and oral evidence was taken from MQ and several other witnesses concerning the specific circumstances of the work that MQ wishes to engage in. Evidence regarding voluntary work undertaken by the Applicant at his children’s primary school was given by the school’s community liaison officer. Her written statement indicated that none of the activities he is involved in at the school require him to be alone with children. She also gave oral evidence.

6 Her oral evidence indicated that work the Applicant undertook in the community room of the school involved working with her and other parents. Children were not usually present although they may drop items off at the room. The Applicant’s work is directly supervised by her at all times. Even if children were to be present, as any contact with children is directly supervised, this work is not likely to be “child related employment” within the meaning of that term in section 3 of the Child Protection (Prohibited Employment) Act 1988. If it is not child related employment then the Applicant is able to undertake that work without requiring any order from this Tribunal.

7 The Applicant also works at the P&C canteen on Gala Days and cooks sausages on sausage sizzle days. This work is normally undertaken in the company of other adults and the school community liaison officer’s evidence indicated that this work was directly supervised by her. Again if this work is directly supervised then the Applicant is able to undertake this work without requiring any order from the Tribunal.

8 At school fetes the Applicant operates the chocolate wheel standing on the back of a truck. The stall is in public view in the presence of those attending the fete including a number of adults. A teacher is also assigned to the stall and sells the tickets.

9 The Applicant also assists in the running of school discos. The school community liaison officer gave evidence outlining the tasks undertaken by parent volunteers at the disco including assistance with security, cooking and serving food and staffing the door. Between 50 and 100 children attend and the disco is held in the evening. Although the Principal is present and in charge of the whole event the evidence indicated that no-one supervised the parents.

10 Discos are held at night and children may go wandering off and need to be found and returned to the disco venue. Although the policy is that adults would work in pairs there is the possibility in these circumstances that the Applicant could end up in a position alone with a female child. I am satisfied on the basis of the evidence given that this work at school discos may involve the Applicant coming into contact with children without the presence of another adult.

11 At a PCYC club the Applicant wishes to undertake work driving buses, assisting in the supervision of youth on holiday program activities and providing general supervision at events such as band nights, skate park events and community events organised by the PCYC. This work would involve contact with young people of both sexes from ages 12-24 years. One of the Applicant’s children attends these activities as a participant.

12 A statement was provided by a senior constable attached to the Police and Community Youth Club (PCYC), an organisation that the Applicant wishes to do voluntary work for. That statement outlined the policy of the PCYC indicating that the Applicant would be under the direct supervision of an adult who had successfully undergone a Child Protection check and been cleared at all times. The senior constable also stated that he had never known the Applicant to conduct himself in an inappropriate way towards youth of either sex. He also noted that the Applicant’s daughter had never made any complaint to him of inappropriate behaviour nor shown any signs of being abused.

13 The senior constable gave oral evidence at the hearing. He stated that between 170-200 young people attended band nights organised by the PCYC and although a police officer is always present they rely on a system of volunteers to assist them on the night. The form of supervision on these nights was that volunteers were always paired with another adult. During cross examination the senior constable agreed that no-one would be directly supervising the Applicant on these nights.

14 In addition, the senior constable stated that the PCYC conducts holiday programs and the most likely role for the Applicant would be as a bus driver taking young people on these excursions and setting up the barbeque. The senior constable made it clear that the Applicant could be accompanied at all times by a police officer in undertaking work on a holiday program. If the Applicant’s work on holiday programs will be directly supervised by such a police officer then that work is not likely to be “child related employment” within the meaning of that term in section 3 of the Child Protection (Prohibited Employment) Act 1988. If that is the case then he would be able to undertake that work without requiring any order from this Tribunal.

15 Evidence was also given by the Manager of the Outreach Program for Youth Off the Streets, another program that the Applicant would like to do voluntary work for. The Applicant’s children attend this program and his wife is a volunteer with the program. Youth Off the Streets is a community organisation working primarily with young people who are chronically homeless, drug dependent and recovering from abuse. Clearly these are a vulnerable group of young people.

16 The program that the Applicant wishes to become involved in is an evening program offered twice a week to young people aged approximately 12-18 years and offers basketball, volleyball, scooter rides, skateboards, music and a free BBQ. The basket ball courts are surrounded by bush and a shopping centre car park. On Friday evenings approximately 52 young people attend. Outings are also organised in the school holidays sometimes in conjunction with the PCYC.

17 The Manager of the Outreach Program stated that he supervised the volunteers. He agreed under cross examination that it would be difficult to provide direct supervision for volunteers at times and described instances where he would not be able to do so.

Conclusion and finding

18 If the Applicant wishes to undertake work that is not directly supervised with boys aged under 18 years then in my view there is no risk to male children.

19 It appears that all of the activities that the Applicant wishes to undertake involve children in mixed gender groups. Where the Applicant is undertaking work that is under the direct supervision of the community liaison officer or other school staff, a staff member of the PCYC or Youth Off the Streets then it is likely that this work does not come within the definition of child related employment within the meaning of that term in section 3 of the Child Protection (Prohibited Employment) Act 1988. If so, then there is no requirement that he seek or obtain an order from the Tribunal. Provided he is directly supervised he is entitled to undertake the work whether on a voluntary or a paid basis without obtaining permission or approval from the Tribunal.

20 In some of the instances described above it appears that organisations are able to arrange that supervision. In others such as the school disco, the band nights organised by the PCYC and the work at Youth Off the Streets program the evidence before me is that it is not feasible to arrange that level of supervision. I accept that evidence.

21 The issue is the risk to female children. If the Applicant wishes to undertake work with girls under the age of 18 years then having considered all of the evidence and submissions in my view he should not undertake that work unless it is directly supervised.

22 For the reasons as stated I am satisfied that with the imposition of the following conditions MQ does not pose “a real and appreciable risk to children”.

Orders


It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to MQ in respect of the offences of carnal knowledge on a child of 15 years for which he was convicted in the Campsie Local Court on 17 July 1978 and of two counts of carnal knowledge with a child of 13 years for which he was convicted in the Sydney District Court on 27 May 1980, on the following conditions:
(i) 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) that will bring him into direct contact with any girl under 18 years.

(ii) He is to provide a copy of these Orders to any employer who employs him in child related employment.