The Commission for Children and Young People v 'AG' - [2002] NSWSC 582

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CITATION: The Commission for Children & Young People v 'AG' [2002] NSWSC 582

CURRENT JURISDICTION: Supreme Court

FILE NUMBER(S): SC 13264/01

HEARING DATE(S): 03/12/01
06/12/01
13/12/02

JUDGMENT DATE: 28 June 2002

PARTIES :

The Commission for Children & Young People v AG

JUDGMENT OF: Dowd J

LOWER COURT
JURISDICTION : Administrative Decisions Tribunal

LOWER COURT
FILE NUMBER(S) : 014054

LOWER COURT
JUDICIAL OFFICER : A Britton

COUNSEL : Mr P Singleton - Applicant
Ms P Lowson - First Respondent

SOLICITORS: Crown Solicitors-Applicant
Paul MacMahon Associates-First Respondent

CATCHWORDS: Application for Declaration as to new application of Act-Powers of Statutory Tribunal-relationship of Crimes Act and Child Protection (Prohibited Employment ) Act 1998- Prerogative relief-relationship of Court with Industrial Relations Commission-comity

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Child Protection (Prohibited Employment ) Act 1998
Child Protection (Offenders Registration) Act 2000.
Crimes Act 1900
Crimes (Amendment) Act 1961:
Defamation Act 1974
Industrial Relations Act 1996

CASES CITED: A v Commission for Children and Young People (2001) 107 IR 211
"AG" v Commission for Children and Young People 2001 NSW ADT 163
Butler v Attorney General for the State of Victoria (1961) 106 CLR 268
Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (147 CLR 297
Cobiac v Liddy (1969) 119 CLR 257
Colin Grassby v The Queen (1989) 168 CLR 1
Mathieson v Burton (1971) 124 CLR 1
Meagher v Stephenson (1993) 30 NSWLR 736
Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 59 IR 36
R v Sales (1989) 42 A Crim R 297
Sarris & Guise v Penfolds Wine Pty Ltd [1962] NSWLR 801

DECISION: 1. An Order removing the record of the Administrative Decisions Tribunal in "AG v Commission for Children & Young People" [2001] NSW ADT 163, be brought up to this Court.; 2. That the Declaration made by the Administrative Decisions Tribunal be quashed.; 3. That an Order dismissing the Application be entered.; 4. That costs be reserved, and; 5. That the continuation of the interim orders be reserved for further argument.

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

DOWD J

28 JUNE 2002

13264/01

The Commission for Children and Young People v ‘AG’

1 HIS HONOUR: By Summons the plaintiff, the Commission for Children and Young People (“the Commission”), brought proceedings against a person designated as “AG” as first defendant and the second defendant, the Administrative Decisions Tribunal (“The Tribunal”), seeking an order pursuant to sub s9(11) of the Child Protection (Prohibited Employment ) Act 1998 (“the Act”), setting aside a declaration made by the Tribunal on 26 September 2001 and alternatively that the record of the Tribunal be removed to this Court and quashed and remitted to the Tribunal for determination according to law.

2 The Summons, alternatively sought to appeal against the decision of the Tribunal on the basis that the Tribunal had no power to make the Declaration in proceedings before it, and further that the Tribunal erred in following a decision of the Industrial Relations Commission because that case was wrongly decided.

3 The original application before the Tribunal, the decision of which was “AG” v Commission for Children and Young People 2001 (NSW ADT 163, 26 September 2001), was an application before Ms A Britton, Judicial member of the Tribunal, on an application as styled by the Tribunal for a Declaration that the applicant was not a “prohibited person” pursuant to s9 of the Act.

4 The definition of “conviction” in the Act is set out in s3 of the Act and provides;

“ conviction includes a finding that the charge for an offence is proven even though the court does not proceed to a conviction”.

5 The definition of “Prohibited Person” and serious sex offence is set out in s5 of the Act:

Child Protection (Offenders Registration) Act 2000

Crimes Act 1900

6 Section 9 of the Act gives the power to either the Industrial Relations Commission or the Administrative Decisions Tribunal, the power to make an Order declaring that Act “is not apply to apply to this person in respect of a specified offence” (emphasis added). Section 9 provides relevantly:

Industrial Relations Act 1996

(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings”.

7 It should be noted that there is a restriction on the matters that may be placed before the Industrial Relations Commission. The current applicant would appear to have been eligible to so apply.

8 It is further provided by s12 of the Act that :

9 ‘AG’ at the time of the Application was a seventy-year old man, employed by a specialist school for children with disabilities. In 1951 he was convicted of two Counts of Indecent Assault on a male person. The Act makes it an offence for a person to apply for or remain in child related employment if a “Prohibited Person”, being a person who has committed a “Serious Sex Offence”.

10 On 24 August 2001, the applicant lodged an Application with the Tribunal seeking a Declaration under s9(1) of the Act, that the Act not apply to him in respect of the offences referred to above and made an Application for a Stay pending determination of the Substantive Application.

11 Under s126(1) of the Administrative Decisions Tribunal Act 1997, (“The Tribunal Act”), an order was made, which would not identify the applicant’s name or the circumstances of his employment and he was thus referred to as Mr AG. I have continued that in this judgment, giving effect to that order.

12 After some adjournments, the Tribunal made Orders, granting a conditional Stay of the prohibition on AG’s employment and stayed the effect of the Act in respect of the two offences on strict terms and conditions, under which AG has continued his employment.

13 At the time of making orders on 10 September 2001, the tribunal had not referred to the decision of the Industrial Relations Commission of Hungerford J in A v Commission for Children and Young People (2001) 107 IR 211, delivered on 28 August 2001.

14 The Industrial Relation Decision was, a decision affecting an applicant in similar legal circumstances. In that decision, Hungerford J determined that that applicant was not a prohibited person under s5 of the Act because of the operation of s579 of the Crimes Act 1900. Section 579 being in the following terms:

Crimes (Amendment) Act 1961

Justices Act 1902

Crimes (Amendment) Act 1961

Defamation Act 1974

Evidence Act 1995

Defamation Act 1974

15 It can be seen from the section, that, in the particular circumstances set out, the conviction is not admissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect (emphasis added). But in particular it is noted that the offence is to be “disregarded for all purposes whatever”.

16 It is convenient here to set out paras 10,11,12 and 13 of the Tribunal’s decision:

Crimes Act

Child Protection Act

Crimes Act

Child Protection Act

Child Protection (Prohibited Employment) Act

Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation

Child Protection (Prohibited Employment) Act

Child Protection Act

Child Protection (Prohibited Employment) Act

Interpretation Act

Gibbs

Mathieson v Burton

Interpretation Act

Athlumney

Maxwell

Child Protection Act

17 The reasons of the Tribunal set out that the Tribunal did not consider itself bound by the doctrine of precedent in respect of decisions of the Industrial Relations Commission and that the decision in ‘A’ v The Commissioner for Children and Young People, had persuasive force only. The Learned Judicial Member then went on to say at para 15:

Child Protection Act.

A v Commission for Young People and Anor

18 The Learned Judicial Member then went on to say at para 16:

“ 16 There is no obvious error of law. Having had the full benefit of considering Hungerford J’s detailed judgment I intend in this decision to adopt that approach in respect to the relationship between the two statutory bodies”.

19 It should be noted that the Judicial Member did not consider herself bound either by precedent or comity but adopted the reasoning of Hungerford J as her own.

20 It is my view, that despite what was submitted to this Court, the Judicial Member did not follow Hungerford J as a binding precedent and did not follow as an act of comity. The Judicial member expressed a view on comity, but then chose to adopt his approach in respect of the relationship statutory provisions. Thus, the Tribunal adopted the reasoning of Hungerford J as the Tribunal’s reasoning. It is therefore the decision of the Tribunal that this Court is concerned with.

21 The Tribunal then went onto say that if ‘AG’ cannot be a “prohibited person” then the jurisdiction of the Tribunal to make an order under s9 of the Act cannot be invoked and went on to say at para 17:

“Accordingly the application before me is otiose. This means, in short, that it is not an offence for Mr AG to remain in child-related employment. Nor is it an offence for his employer to continue to employ him”.

22 The Tribunal then went on to make a declaration at 17:

Child Protection (Prohibited Employment) Ac

23 The Court had in evidence, the appeal that had been lodged in the decision of Hungerford J, which brings into account the construction of s12 of the Act and the relationship between the Act and s579 of the Crimes Act 1900. The Court was advised that the appeal was to be heard on 12 April last. The Court has not been advised as to whether the matter of the appeal has been heard or as to whether any decision has been handed down.

24 The amended Summons incorporated an appeal against the decision of the Tribunal in addition to the relief already sought, in the nature of Certiorari.

25 The original application by AG to the Tribunal was for a Declaration that the Act not apply to him in respect of the two offences.

26 The Commission contends that AG is a “prohibited person” within the meaning of the Act and therefore the Tribunal decision was wrong and contends in the nature of the relief of Certiorari that the Tribunal has no power to make a general Declaration, and in particular has no power to make the Declaration that it did.

27 The Commission further submitted that it was necessary to determine whether or not the first respondent is a “prohibited person” and that it is not sufficient to merely quash the Declaration made by the Tribunal. If the Tribunal has no declaratory power, then the Tribunal’s Declaration should have substituted for it, an order dismissing the proceedings below.

28 Alternatively, it was submitted that should the Court be satisfied that the Tribunal has no declaratory power and find AG to be a “prohibited person”, the Court should then quash or set aside the Tribunal’s Declaration and remit the proceedings to the Tribunal.

29 It was submitted that whilst the Act does not express its objectives but it is primarily concerned with protection of children. I would add to that, that it is primarily concerned with the protection of children from people who have had convictions, not just the protection of children.

30 There is not issue between the parties that the offences were serious sex offences and that there was a conviction, which ever way s579 of the Crimes Act is determined would, in its absence, clearly constitute a conviction. It is submitted by Mr Singleton, for the Commission, that s9 of the Act entitles a prohibited person to seek an order exempting him from the provisions of the Act in respect of offences and that this is not intended to be a second punishment, but to ensure that paedophiles and the like do not work in child related employment unless it can be demonstrated tat they do not pose a risk.

31 I accept the submission of the Commission that the Administrative Decisions Tribunal Act 1998, provides that the Tribunal has such functions as are conferred on it by that Act or law.

32 Statutory Tribunals and other inferior courts do not have the inherent powers of superior courts of record: Grassby v The Queen (1989) 168 CLR 1 and R v Mosely (1992) 28 NSWLR.

33 A statutory tribunal without the powers of superior courts of record will also have implied powers necessarily incidental to be able to work effectively within it’s jurisdiction.

34 It is clear that the Act does confer on the Tribunal a power to declare

“that this Act is not to apply to the person in respect of a specified offence”.

35 In making the finding above, I am not applying that reasoning to the Industrial Relations Commission if the s9 application were made to that Commission or any decision in relation to that. The Industrial Relations Commission is a superior court of record having status equal to that of this court and is a specialist jurisdiction operating under a fairly idiosyncratic regime and it is clearly not for this court at first instance to review a decision of that court in it’s function when the Industrial Relations Commission sits in court session. There is another provision in s9(3) of the Act limiting the circumstances in which the Commission may make an order as set out above. That provision is set out above.

36 It is however, as submitted by the Commission, clear that in the course of determining an application under s9 whether the applicant is a competent applicant, the Tribunal must find whether that person is a “prohibited person” within the definition in the Act. Since the Act applies to a prohibited person, since s5 applies to a prohibited person unless an appropriate declaration is made under s9. The Tribunal therefore has two functions when sitting as the Tribunal, first, to decide whether the applicant is a prohibited person, secondly as to whether the applicant is entitled to a declaration, using the criteria set out under the Act.

37 It was submitted by the Commission that in the Declaration that the Tribunal made it was outside of the power of the Tribunal. It is further submitted that the doctrine of comity does not confer power to grant to relief. I do not consider that the Learned Judicial Member was considered herself armed by comity in terms of the Tribunal power, but in terms of the reasoning of Hungerford J in A v The Commission, as to the relationship of the Act to s579 of the Crime Act .

38 In my view, it was the duty of the Tribunal to first, in establishing whether the applicant was a competent applicant to determine whether he came within s5(i) of the Act and if having found that the applicant was not so competent, the proper course was to then dismiss AG’s application.

39 This is, off course, a less than satisfactory result from AG’s point of view as the dismissal of the application does not arm him with an order of the Court in order to protect his right to employment and would oblige him to use the dismissal judgment as his only protection. That would, off course, be the judgment of the Tribunal.

40 Although arguments have been advanced as to the power of Hungerford J to make a decision in court session, it is not appropriate for this court to examine the judgment in what would be in effect, an appeal from Hungerford J. That is a matter for the normal appeal processes from his decision. It may well be that the fault with the Act, if one may respectfully suggest is that there is no guidance to an applicant that can go either to the Tribunal or the Industrial Relations Commission, that applicant not being aware that the Industrial Relations Commission has different powers and certainly s9 of the Act guides an applicant, if it involves existing employment in an application under s9 of the Act to go to the Industrial Relations Commission.

41 Clearly, if an applicant does not come within the definition of a “prohibited person” in s5 of the Act, then the Tribunal cannot make a Declaration under s9 of the Act. In terms of the present matter it is submitted by Ms Lowson, on behalf of AG, that the Tribunal correctly found that the respondent is not a “prohibited person’ and has referred the Court, in relation to s579, to the second reading speech introducing the Bill which incorporated s579 into the Crimes Act introduced into the Legislative Assembly on 29 November 1961, and the decision of Kirby P in R v Sales (1989) 42 A Crim R 297, where His Honour held, at p298:

Crimes Act

42 It is submitted by the Commission that there is an inconsistency between the Act and s579 of the Crimes Act but I agree with the submission of Ms Lowson that there is no basis for including that the legislature did not intend s579 of the Crimes Act and the Act to operate together. The provisions of s579 are part of the Criminal Justice System and set up a very strict regime, which has a specific purpose, generally to rehabilitated.

43 The various alternative penalties, particularly those available since the enactment of s579 of the Crimes Act do not detract from the regime created by that section, which remains in the Crimes Act as part of an overall structure of the Act.

44 I also adopt the submission of Ms Lowson that in asserting inconsistency between the Act and s579 the Plaintiff fails to apply the principle that, in considering the operation of two State Acts there is a presumption that the legislature intended both to operate. See Sarris & Guise v Penfolds Wine Pty Ltd [1962] NSWLR 801 at 805; Butler v Attorney General for the State of Victoria (1961) 106 CLR 268 at 276; Totalizator Agency Board v TAB Agents’ Association of New South Wales (1995) 59 IR 36 at 45.

45 I further accept the submission that in assessing how two Acts may interrelate a court must examine the language of the Acts; the resolution of any question of inconsistency is not based upon the application of a maxim. “…but whether a late Act has taken away a discretionary power given by an earlier Act must depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims” Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 268.

46 I reject the Commission’s reliance on s12 as there is no inconsistency between s12 of the Act and s579 of the Crimes Act.

47 For the reason’s articulated above and the reasoning of Hungerford J, which I apply both in terms of the comity between the Industrial Relations Commission and this Court and in any event I respectfully agree with the reasons of His Honour. I find that there is no inconsistency between the Act and s579 of the Crimes Act and that the applicant is not a “prohibited person”, and thus not competent to bring the application.

48 It is submitted by Ms Lowson, Counsel for AG that having regard to the whole of the decision there is no useful purpose in this Court entertaining the plaintiff’s application as the Judicial Member has made findings pursuant to s9 of the Act, granting a conditional Stay and as the Commission is not challenged this aspect of the ADT, to the decision that the application for prerogative relief and the appeal if it is appropriate be dismissed.

49 It seem to me that if that the Declaration made made is Ultra Vires the Tribunal and thus, the appropriate remedy is the removal of the record from the Tribunal and that the Declarations made be quashed.

50 If the application is dismissed, I consider the conditions on AG’s employment should also be removed, as there is no basis for the regime that is now in place, continuing. He is, in my view free to continue with his employment. This however, has not been argued and I reserve that for further argument.

51 The question of the adding of the appeal ground, does not have to be dealt with by this Court except in terms of costs. This is not a matter where a claim of Certiorari has been added to a statutory appeal, to secure an appeal as of right to the Court of Appeal as in Meagher v Stephenson (1993) 30 NSWLR 736 at 739. The prerogative remedy, first sought by the Commission is sufficient for the purposes of these proceedings and the question of the appeal does not arise.

52 For the reasons that I have set out above, if the record is to be brought up to this Court, to remit the proceedings back to the Tribunal, would serve little purpose. It is my view that in the exercise of the general power, this Court should make an order, which this case requires, which is to enter a dismissal of the application.

53 The orders of the Court are as follow:

AG v Commission for Children and Young People

2. That the Declaration made by the Administrative Decisions Tribunal be quashed.

3. That an Order dismissing the Application be entered.

4. That costs be reserved, and

5. That the continuation of the interim orders be reserved for further argument.

oOo

Last Modified: 07/03/2002

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Citations

The Commission for Children and Young People v 'AG' [2002] NSWSC 582

Most Recent Citation

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

Cases Citing This Decision

2

Ie v Commission for Children and Young People [2003] NSWADT 266

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

Cases Cited

11

Statutory Material Cited

7

R v Forbes; ex parte Bevan [1972] HCA 34

Grassby v The Queen [1989] HCATrans 80

Dietrich v The Queen [1992] HCA 57

CITATION:	The Commission for Children & Young People v 'AG' [2002] NSWSC 582
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	SC 13264/01
HEARING DATE(S):	03/12/01 06/12/01 13/12/02
JUDGMENT DATE:	28 June 2002
PARTIES :	The Commission for Children & Young People v AG
JUDGMENT OF:	Dowd J

LOWER COURT JURISDICTION :	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S) :	014054
LOWER COURT JUDICIAL OFFICER :	A Britton

COUNSEL :	Mr P Singleton - Applicant Ms P Lowson - First Respondent
SOLICITORS:	Crown Solicitors-Applicant Paul MacMahon Associates-First Respondent
CATCHWORDS:	Application for Declaration as to new application of Act-Powers of Statutory Tribunal-relationship of Crimes Act and Child Protection (Prohibited Employment ) Act 1998- Prerogative relief-relationship of Court with Industrial Relations Commission-comity
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment ) Act 1998 Child Protection (Offenders Registration) Act 2000. Crimes Act 1900 Crimes (Amendment) Act 1961: Defamation Act 1974 Industrial Relations Act 1996
CASES CITED:	A v Commission for Children and Young People (2001) 107 IR 211 "AG" v Commission for Children and Young People 2001 NSW ADT 163 Butler v Attorney General for the State of Victoria (1961) 106 CLR 268 Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (147 CLR 297 Cobiac v Liddy (1969) 119 CLR 257 Colin Grassby v The Queen (1989) 168 CLR 1 Mathieson v Burton (1971) 124 CLR 1 Meagher v Stephenson (1993) 30 NSWLR 736 Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 59 IR 36 R v Sales (1989) 42 A Crim R 297 Sarris & Guise v Penfolds Wine Pty Ltd [1962] NSWLR 801
DECISION:	1. An Order removing the record of the Administrative Decisions Tribunal in "AG v Commission for Children & Young People" [2001] NSW ADT 163, be brought up to this Court.; 2. That the Declaration made by the Administrative Decisions Tribunal be quashed.; 3. That an Order dismissing the Application be entered.; 4. That costs be reserved, and; 5. That the continuation of the interim orders be reserved for further argument.