RA v Commission for Children and Young People

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: RA v Commission for Children and Young People [2006] NSWADT 44

PARTIES: APPLICANT
RA
RESPONDENT
Commission for Children and Young People

FILE NUMBERS: 054026

HEARING DATES: 25/07/2005, 2/08/2005 and 11/10/2005

SUBMISSIONS CLOSED: 11/10/2005

DECISION DATE: 10/02/2006

BEFORE: Britton A - Judicial Member

LEGISLATION CITED: Child Protection (Offenders Registration) Act 2000
Child Protection (Prohibited Employment) Act 1998
Crimes Act 1900
Criminal Code (NT)
Summary Offences Act 1988

CASES CITED:

APPLICATION: Jurisdiction

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
S Free, solicitor advocate

ORDERS: That the application be dismissed for want of jurisdiction with a notation to be made on the orders that the applicant is not a “prohibited person” under the Child Protection (Prohibited Employment) Act 1998

Reasons for Decision:

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

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

This is an application brought under the Child Protection (Prohibited Employment) Act 1998 (“CP(PE) Act”) for an order pursuant to s.8A of the Act declaring that this Act is not to apply to the applicant in respect of a specified offence, thus enabling the applicant to undertake child-related work.
A preliminary issue, however, critical to the determination of the application, arises. Solicitor for the respondent, Mr Free, submits that the Tribunal is without jurisdiction to deal with the application. The essence of the respondent’s submission is that the applicant is not a “prohibited person” as defined by, and for the purposes of, the CP(PE) Act. I agree with that submission for the following reasons.
Section 5 of the CP(PE) Act relevantly provides:
5 Prohibited persons
(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, or a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000.
(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 8A or 9 declares that this Act is not to apply to the person in respect of the offence.
(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
(b1) an offence under section 80D or 80E of the Crimes Act 1900, where the person against whom the offence is committed is a child, 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 91H, 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
(d1) an offence an element of which is an intention to commit an offence referred to in paragraph (a), (b) or (d), 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.
(6) For the purposes of this Act, section 579 of the Crimes Act 1900 does not apply to or in respect of a serious sex offence.
The applicant was convicted of an offence committed in Darwin on 13 May 1993 of committing an act of gross indecency upon a male in a public place. The charge was laid under s.127 of the Northern Territory Criminal Code which at the relevant time provided as follows:
127. Sexual intercourse or gross indecency between males in public
(1) Any male who in public or in any public place -
(a) has sexual intercourse with a male; or
(b) commits any act of gross indecency with a male,
is guilty of a crime and is liable to imprisonment for 7 years.
(2) If one of the male persons involved in the crime is under the age of 14 years, any other offender who is an adult is liable to imprisonment for 14 years.
The respondent’s submission is that in May 1993, there was no NSW statutory equivalent of the charge laid against the applicant. At that time, s.78Q of the Crimes Act 1900 (NSW) was the nearest NSW equivalent to the NT s.127 charge but, critically, it created an offence for acts of gross indecency with or towards males persons under the age of 18 years. The section provided:
78Q Acts of gross indecency
(1) Any male person who commits, or is a party to the commission of, an act of gross indecency with or towards a male person under the age of 18 years shall be liable to imprisonment for 2 years.
(2) Any person who solicits, procures, incites or advises any male person under the age of 18 years to commit or to be a party to the commission of an act of homosexual intercourse, or an act of gross indecency, with or towards a male person shall be liable to imprisonment for 2 years.
It is an element of the offence under s.78Q that the alleged victim or object of the defendant’s conduct be under 18 years of age at the time of the offence. Clearly enough the NT provision is aimed at outlawing all homosexual activity in public places, whether or not the persons involved were consenting adults, whereas the NSW provision had the more limited aim of prohibiting homosexual acts committed towards or upon male children. Mr Free quite candidly concedes that there are some indications that the victim of the applicant’s offence may have been a boy of 16. Nevertheless, he maintains that, if so, it is immaterial as the offence provisions themselves are not equivalent. I agree that the critical issue is whether the elements of the offence, not the particulars of a specific case, are equivalent and that, in this case, there is no statutory equivalency of the NT and NSW provisions.
The respondent further submits that other possible statutory equivalents, such as ss.4 and 5 of the Summary Offences Act 1988 are irrelevant in these proceedings because in May 1993 neither provided for a maximum term of imprisonment of 12 months or more and accordingly are not caught by the terms of s 5(3)(b) of the CP(PE) Act. In the case of s.4, which prohibited offensive conduct in a public place, a maximum of three months imprisonment could be imposed and, in relation to s.5, which prohibited obscene exposure, a maximum term of six months imprisonment was provided. That submission is clearly correct.
Finally, Mr Free argues that the applicant falls outside the scope of the provisions of the Child Protection (Offenders Registration) Act 2000 (“CPOR Act”). Under the provisions of that Act a person is a “prohibited person” for the purposes of the CP(PE) Act if he or she is a “registrable person”, namely, a person whom a court has sentenced in respect of a “registrable offence”. A registrable offence is defined in s.3 of the CPOR Act as a “Class 1” or “Class 2” offence or “an offence that results in the making of a child protection registration order.”
Class 1 offences, for the purposes of the CPOR Act are defined as:
(a) the offence of murder, where the person murdered is a child, or
(b) an offence that involves sexual intercourse with a child (other than an offence that is a Class 2 offence), or
(c) an offence against section 66EA of the Crimes Act 1900, or
(d) an offence against section 50BA or 50BB of the Crimes Act 1914 of the Commonwealth, or
(e) any offence under a law of a foreign jurisdiction that, if it had been committed in New South Wales, would have constituted an offence of a kind listed in this definition, or
(f) an offence under a law of a foreign jurisdiction that the regulations state is a Class 1 offence, or
(g) an offence an element of which is an intention to commit an offence of a kind listed in this definition, or
(h) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this definition, or
(i) an offence that, at the time it was committed:
(i) was a Class 1 offence for the purposes of this Act, or
(ii) in the case of an offence occurring before the commencement of this definition, was an offence of a kind listed in this definition.
Class 2 offences are the following:
(a) an offence that involves an act of indecency against or in respect of a child, being an offence that is punishable by imprisonment for 12 months or more, or
(b) an offence under section 86 of the Crimes Act 1900, where the person against whom the offence is committed is a child, except where the person found guilty of the offence was, when the offence was committed or at some earlier time, a parent or carer of the child, or
(c) an offence under section 80D or 80E of the Crimes Act 1900, where the person against whom the offence is committed is a child, or
(d) an offence under section 91D–91G of the Crimes Act 1900 (other than an offence committed by a child prostitute), or
(e) an offence under section 578B or 578C (2A) of the Crimes Act 1900, or
(f) an offence under section 21G (1) of the Summary Offences Act 1988, where the person who was being filmed as referred to in that subsection was then a child, or
(g) an offence against section 50BC, 50BD, 50DA or 50DB of the Crimes Act 1914 of the Commonwealth, or
(h) an offence against section 270.6 or 270.7 of the Criminal Code of the Commonwealth where the person against whom the offence is committed is a child, or
(i) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or of child abuse material, or
(j) any offence under a law of a foreign jurisdiction that, if it had been committed in New South Wales, would have constituted an offence of a kind listed in this definition, or
(k) an offence under a law of a foreign jurisdiction that the regulations state is a Class 2 offence, or
(l) an offence an element of which is an intention to commit an offence of a kind listed in this definition, or
(m) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this definition, or
(n) an offence that, at the time it was committed:
(i) was a Class 2 offence for the purposes of this Act, or
(ii) in the case of an offence occurring before the commencement of this definition, was an offence of a kind listed in this definition.”
The respondent’s submission, with which I agree, is that the applicant was not convicted of, or sentenced for, an offence falling within one of the above categories and that therefore the applicant is not a “registrable person” for the purposes of the CPOR or CP(PE) Acts.
For all those reasons, therefore, the applicant is not a “prohibited person” under the terms of the CP(PE) Act and the Tribunal accordingly has no jurisdiction to exercise in respect of the application. This means that the prohibitions imposed upon prohibited persons do not apply to him and therefore it is not an offence for him to undertake, apply for, or remain in child-related employment. The Registrar is requested to notify the applicant’s employer of this finding and orders.
I am grateful to Mr Free for the excellence and fairness of his submissions, which have been of great assistance to the Tribunal.

Orders

That the application be dismissed for want of jurisdiction with a notation to be made on the orders that the applicant is not a “prohibited person” under the CPPE Act.

[2006] NSWADT 44

10 February 2006