UR v Commission for Children and Young People

[2006] NSWADT 78

CITATION:	UR v Commission for Children and Young People [2006] NSWADT 78
DIVISION:	Community Services Division
PARTIES:	APPLICANT UR RESPONDENT Commission for Children and Young People
FILE NUMBER:	054061
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	01/27/2006
DATE OF DECISION:	03/15/2006
BEFORE:	Britton A - Judicial Member
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Offenders Registration) Act 2000 Crimes Act 1900 Summary Offences Act 1988
CASES CITED:	De Simoni v The Queen (1981) 147 CLR 389
REPRESENTATION:	APPLICANT M Preese, barrister RESPONDENT M England, barrister
ORDERS:	The application is dismissed for want of jurisdiction because the applicant is not a “prohibited person” under the Child Protection (Prohibited Employment) Act 1998.

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 This is an application brought under the Child Protection (Prohibited Employment) Act 1998 (“CP(PE) Act”) for orders pursuant to ss.9(1) and 9(6) of the Act declaring that this Act is not to apply to the applicant in respect of a specified offence, thus enabling him to continue to undertake child-related work. The sole issue addressed in these reasons is whether the Tribunal has jurisdiction to make the orders sought.

2 The applicant submits that he is not a “prohibited person” as defined by, and for the purposes of, the CP(PE) Act because he does not have a conviction for a “serious sex offence” within the meaning of s.5(3) of the Act and accordingly the Tribunal is without jurisdiction to make such orders. The respondent disagrees and contends that the applicant does have a conviction for a “serious sex offence” and as such is a “prohibited person”.

3 Section 5 of the CP(PE) Act relevantly provides:

(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.
4 On 5 January 1984, the applicant was convicted by the Wyong Court of Petty Sessions of an offence committed at Noraville on 25 September 1983 of committing an act of indecency upon a male. The charge was laid under s.81A of the Crimes Act1900 (now repealed) which at the relevant time provided:
Whosoever, being a male person, in public or private, commits, or is party to the commission of, or procures or attempts to procure the commission by any male person of, any act of indecency with another male person shall be liable to imprisonment for two years.
5 Pursuant to s.5(1) a prohibited person must have been convicted of a relevant offence. Apart from that for the offence of 25 September 1983, the applicant has no other convictions for a relevant offence or any other offence resembling a relevant offence. While three other similar offences were charged, the applicant was discharged in relation to one and the other two were dismissed.

Does s.5(4) apply ?

6 The first submission for the applicant is that the offence created by s.81A no longer exists, that section having been repealed in 1984, and that therefore, by virtue of s.5(4) of the CP(PE) Act, the applicant’s conviction for an offence against s.81A is not relevant because the conduct then constituting the offence has been decriminalised.

7 The effect of the applicant’s first argument concerning jurisdiction is that s.81A prohibited any form of homosexual activity between males, whether they were adult or not, whether they consented or not and whether the activity took place in public or private; that the repeal of s.81A was a decision of the Parliament to decriminalise such activity; that homosexual activity between consenting adult males is no longer criminal; that all the applicant has been convicted of is engaging in consensual homosexual sex with another adult; and that therefore he falls within the exception created by s.5(4).

8 The applicant’s further submission is that the words “the conduct constituting the offence” in s.5(4) should be read to mean “the conduct constituting the elements of the offence”. He says that if today a male person of 31 years of age (as the applicant was at the time of his offence) engaged in consensual mutual masturbation in a public place with another male adult person the conduct would amount to no more than offensive conduct (within the meaning of s.4 of the Summary Offences Act 1988) or obscene exposure (an offence against s.5 of the Summary Offences Act). Neither of those offences are “serious sex offences” for the purposes of the CP(PE) Act.

9 The respondent argues, however, that because the CP(PE) Act is protective legislation, in interpreting s.5(4) it is insufficient merely to look at the terms of s.81A and the conviction record . It says that the facts and circumstances of the offence must be taken into account by the Tribunal in assessing whether the exception applies.

10 A plea of guilty carries with it only the concession that the bare elements of the offence have been made out and nothing more unless there is a specific admission or confession made concerning, for example, aggravating features of the offence. According to the record of interview conducted by police and signed by the applicant, the act of indecency took place on or near a bush track in the presence of a boy of 12 years of age. He admitted masturbating and having had oral sex with his adult male partner in the presence of the boy but denied touching the boy.

11 It appears that the answer to this conundrum is relatively straightforward, notwithstanding some of the complications that have been raised in submissions. The only jurisdiction the Tribunal may exercise under the CP(PE) Act is in respect of applications brought before it pursuant to s.9 of that Act. Pursuant to s.9 the Tribunal may, in appropriate circumstances, declare that a prohibited person (within the meaning of s.5) is not prohibited from working in child-related employment. For that jurisdiction to be triggered, the applicant for the declaration must be a prohibited person as defined by s.5(1) and who is not also subject to one of the exceptions outlined in further sub-sections of s.5. If a person falls within one of the exceptions, by definition he or she is not a prohibited person. The Act therefore does not apply to him or her and neither has the Tribunal any jurisdiction to exercise in respect of any application brought by the person pursuant to s.9.

12 Section 5(1) tells us that a “prohibited person” is a person convicted of a serious sex offence committed before or after the commencement of the CP(PE) Act or, a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000. (It is not in issue that the applicant is not a “registrable person” namely a person whom a court has sentenced in respect of a “registrable offence”.) Section 3 of the CP(PE) Act provides for a wide definition of “conviction”: it includes “a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction”. It is critical to emphasise that the jurisdiction of criminal courts is limited to the matters which are properly commenced before them. They are not investigative bodies. Our constitutional settlement is that the executive commences proceedings against accused persons and makes the choice as to what charges are prosecuted. The courts have virtually no function to exercise in that regard.

13 Prosecutors will very often have a discretion to exercise as to which charges will be laid in respect of certain conduct. We are all familiar with the phrase “throwing the book” at someone, meaning that from one course of conduct, a number of offences may be charged against an individual person. Ordinarily, however, the prosecutors make a choice from a range of possible charges rather than laying all available charges (“throwing the book”) against someone.

14 Even if it is evident to a court that a person may have committed offences other than those which the prosecution proceeds on, or may have committed more serious offences than those charged, it cannot act outside the scope of the charge(s) laid. (See, for example, De Simoni v The Queen (1981) 147 CLR 389). Therefore whether or not the applicant committed other offences, the Wyong Court of Petty Sessions could only deal with those matters of which it was seised by proper originating process. Moreover, it could only properly enter convictions in respect of those matters in which the prosecution, either by advancing evidence or by admissions from the accused, were proven beyond a reasonable doubt. It is clear from the court records that in respect of three of the charges, the court formed a view that the prosecution could not prove its cases beyond a reasonable doubt.

15 That is important because a person only becomes a prohibited person within the meaning of s.5(1) in respect of an alleged offence if a court has found the person guilty of that offence, that is, has found the offence proven beyond reasonable doubt. Therefore the only charge in which this Tribunal can be interested is the one in respect of which a finding of guilt was made.

16 Despite the submissions made on behalf of the respondent, in my view it is not to the point that there may have been aggravating circumstances in respect of a particular offence previously committed if the conduct constituting the offence is no longer an offence at all.

What is the ‘conduct constituting the offence’?

17 An offence is made up of a number of elements, principally what were once called the “mens rea” and the “actus reus”: the “guilty mind” or mental element and the “guilty act” or conduct element. Those elements set the parameters of the relevant offence and they are not to be added to (by, for example, references to the factors outlined in s.9(5) of the CP(PE) Act) nor subtracted from.

18 Sub-section 5(4) needs to be analysed in its own general terms, not by reference to the facts in a particular case, if its correct interpretation is to be found. The first thing to be observed is that the self-evident public policy underlying s.5(4) is that it recognises the fact that conduct that was once criminalised by statute or the common law may, from time to time, be decriminalised by statute. The second thing to be observed is that it refers to conduct. While it is true that this gives rise to a certain ambiguity, because, except in relation to offences of strict and absolute liability, there is no offence without knowledge or intention, it is clear enough what Parliament meant. It meant to catch conduct that was previously caught by a law and which is no longer so caught. How can we know what that conduct is? Surely the only clear answer is by reference to the repealed offence provision which originally defined the guilty conduct in turn by reference to certain elements.

19 It is therefore incorrect, in my view, to argue as the respondent does, that the words “conduct constituting the offence” refers to the facts of a particular case rather than to the elements of the offence created by s.81A.

20 Section 9 and the various considerations it outlines are not relevant to whether or a person has committed a particular offence nor whether that offence falls within the scope of s.5(1) or one of its exceptions and the submissions made in that respect by counsel for the respondent, with respect, miss the point.

21 Whether the applicant committed other offences or even admitted other offences of which he was not convicted is irrelevant for present purposes. Whether there were aggravating circumstances in relation to the offence of which he was convicted is equally irrelevant if his proven offence is no longer part of the law of NSW. In my view, therefore, s.5(4) applies in this case and the applicant falls within the exception.

The s.5(5) argument

22 The applicant’s second argument is that s.5(5) applies in this case. He seeks to read into s.5(5) the terms of s.5(4). In my view, it is a misconceived argument. The ordinary rules of statutory interpretation require the provision to be construed according to their ordinary meaning unless the words are ambiguous or to give them their ordinary meaning would result in an absurdity. That is not the case here.

23 The provision is, in my view, clear and unambiguous: it means that sexual conduct which, if it took place in private, would not constitute criminal behaviour but which, if it took place in a public area, would be criminal, is not for the purposes of the CP(PE) Act to be regarded as “a serious sex offence”. There is no warrant to read s.5(4) into s.5(5). Each section is designed for a different purpose and has different work to do. In my view, s.5(5) is not a relevant exception in this case because there is no retrospective element implicit in it.

Conclusions

24 It follows that the applicant is not a “prohibited person” under the terms of the CP(PE) Act because he falls within the exception in s.5(4). The Tribunal accordingly has no jurisdiction to exercise under s.9. This means that the prohibitions imposed upon prohibited persons do not apply to the applicant and therefore it is not an offence for him to undertake, apply for, or remain in child-related employment.

Orders

The application is dismissed for want of jurisdion because the applicant is not a “prohibited person” under the Child Protection (Prohibited Employment) Act 1998.