Uy v NSW Commission for Children and Young People

[2010] NSWADT 283

CITATION:	UY v NSW Commission for Children and Young People [2010] NSWADT 283
DIVISION:	Community Services Division
PARTIES:	APPLICANT UY RESPONDENT NSW Commission for Children and Young People
FILE NUMBER:	104015
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	30 September 2010
DATE OF DECISION:	29 November 2010
BEFORE:	Higgins S - Deputy President
CATCHWORDS:	Prohibited person – standing to bring application
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Commission for Children and Young People Act 1998 Crimes Act 1900 (NSW) Criminal Code Act 1899 (QLD)
REPRESENTATION:	APPLICANT In Person RESPONDENT F Coyne, barrister
ORDERS:	The application is dismissed as the applicant has no standing to bring his application.

REASONS FOR DECISION

1 UY has made an application under sub-section 33I (1) of the Commission for Children and Young People Act 1998 (the Act) seeking an order declaring that Division 2 of Part 7 of that Act does not apply to him in regard to an offence (unlawful carnal knowledge), of which he was convicted 32 years ago when he was 19 years of age. UY also made an application under section 33K of the Act seeking an order to stay the operation of a prohibition under Division 2 of Part 7 of the Act pending determination of his application.

2 UY does not dispute that he was convicted of the unlawful carnal offence. He explained to the Tribunal that last year he had applied for a permanent position with his employer of 12 years. He was unsuccessful in his application, but was informed that his security check for the position had revealed his 1978 conviction. UY said he had forgotten about this conviction as it had occurred such a long time ago and he thought it had been spent. UY explained that earlier this year his employer had advised him and other administrative staff that they needed to re-apply for their positions. UY said he had lodged his application for his current position and it was as a result of what he had been advised previously that he lodged his application with the Tribunal.

3 At the initial hearing of the stay application, the Commissioner for Children and Young People (the Commissioner) questioned UY’s standing to make this application and hence his substantive application. After having made further enquiries about the offence, at the next directions hearing, the Commissioner pressed the issue as to UY’s standing to bring this application and the stay application. By consent, the parties agreed that the issue of UY’s standing to make his substantive application be determined as a preliminary issue and that it be determined on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

4 For the reasons set out below I find that UY has no standing to bring this application.

The Commission for Children and Young People Act 1998

5 Part 7 of the Commission for Children and Young People Act 1998 (the Act) contains provisions relating to child-related employment.

6 Section 33C of Subdivision 1 of Division 2 of this Part of the Act provides that a ‘prohibited person’ must not apply for, undertake or remain in ‘child-related employment’. A breach of this provision is an offence punishable by a fine, or imprisonment for 2 years, or both.

7 Section 33D provides that an employer must not commence employing any other person in ‘child-related employment’ without first requiring that other person to disclose whether or not that other person is a ‘prohibited person’. And section 33E prohibits an employer from employing or continuing to employ, in ‘child-related employment’ a person who the employer knows to be a ‘prohibited person.’ A breach of sections 33D and 33E is an offence punishable by a fine.

8 A ‘prohibited person’ is defined in subsection 33B(1) and (2) of Subdivision 1 of Division 2 of Part 7 of the Act. It relevantly provides that a ‘prohibited person’ is a person convicted of a ‘serious sex offence’, whether before or after the commencement of the Act. A ‘serious sex offence’ is defined in subsection 33B(3). It relevantly provides as follows:

‘ Serious sex offence means (subject to sections (4) and (5)):

(a) an offence involving sexual activity or acts of indecency that was committed in New South Wales and that is 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.

(c) …’

9 The term ‘child related employment’ is defined in subsection 33(1) of Division 1 of Part 7 of the Act. It is unnecessary for me to consider this definition further, as it is not the role of the Tribunal to determine whether an applicant’s employment or proposed employment is ‘child-related’ as defined in that subsection.

10 The Tribunal’s jurisdiction arises under subsection 33I(1) and (2) of Division 2 of Part 7 of the Act. That subsection relevantly provides as follows:

33I IRC and ADT may make declarations concerning prohibited persons

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Division is not to apply to the person in respect of s specified offence. (2) A relevant tribunal is:

(a) the Industrial Relations Commission, or
(b) the Administrative Decisions Tribunal.

11 Where a ‘prohibited person’ makes an application under section 33I(1), that application is made in the Tribunal’s review jurisdiction (see section 33 F).

12 If the Tribunal makes an order under section 33I of the Act, the effect of that order is that the person in whose favour the order is made will no longer be subject to the prohibitions contained in sections 33C, 33D and 33E in so far as these prohibitions relate to the person’s serious sex offence the subject of that person’s application before the Tribunal. However, if the person is convicted of a further ‘serious sex offence’ that person will again be subject to the prohibitions contained in these sections.

13 While subsection 33I(1) provides for any ‘prohibited person’ to make an application to the Tribunal, this subsection must be read in conjunction with section 33G, which provides that certain prohibited persons are not entitled to make an application for an order under that subsection 33I.

14 Section 33G relevantly provides as follows:

33G Persons not entitled to make review applications

(1) a prohibited person who has been convicted of any of the following offences, committed by the person as an adult, is not entitled to make an application under section 33H or 33I

(a) …
(b) an offence under section 66A, 66B, 66C 66D or 73 of the Crimes Act 1900 or a similar offence under that Act or any other law involving sexual intercourse with a child (including a law involving sexual intercourse with a child (including a law other than a law of New South Wales), …

(2) the … relevant tribunal may grant leave to a prohibited person to make a review application, despite a conviction for an offence referred to in subsection (1), if …the tribunal is satisfied that:

(a) the offence is an offence referred to in subsection(1)(b), …, and
(b) the prohibited person was not more than 3 years older than the child against whom the offence was committed, and
(c) the offence did not involve circumstances of aggravation within the meaning of section 66C of the Crimes Act 1900.

15 The issue for determination is:

(a) whether UY’s conviction falls into subsection 33G(1)(b);

(b) if it does, whether the circumstances giving rise to his conviction fall within subsection 33G(2); and

(c) if it does, whether the Tribunal should grant leave to UY to make his application for review.

The evidence

16 In his application lodged with the Tribunal, UY said the victim, to the knowledge of her parents, was his girlfriend at the time. He said she was 16 to 17 years of age and that he and she resided at the victim’s elder sister’s place of residence. He also said that, at the time of the offence, the victim was in full time employment and she was supporting herself.

17 UY’s Crimtarc record, obtained by the Commission states that UY was convicted, at the Brisbane Magistrates Court, on 7 April 1978, of an offence of ‘unlawful carnal knowledge of a girl under 17YRS .’ He was fined $100 and given 2 months to pay the fine. The record also indicates that the offence had occurred the day prior to his conviction, namely on 6 April 1978.

18 The Commission also filed a copy of the 2 page Court Brief of the Queensland Police Department in regard to UY’s 1978 conviction. It is stated on this brief that UY was charged with an offence under section 215 of the Criminal Code Act 1899 (QLD). A copy of that section, as it applied at the relevant time, was provided to the Tribunal at the hearing of UY’s adjourned stay application, by counsel for the Commissioner. At the time the maximum penalty on a conviction of an offence under that section was imprisonment with hard labour for five years. However, the offence was an offence of unlawful carnal knowledge of a girl under the age of 16 years.

The Court Brief also attached a summary of facts. This summary of facts, to the extent it was legible, stated the following:

‘on the 7 ^th day of April, 1978, the defendant was … Juvenile Bureau, … House in connection with his relationship with a female, [deletion] aged 15 years. The defendant stated that he was the boyfriend of [deletion] and had been so for some months. He stated that he had frequently had sexual intercourse with [deletion] during that period. He stated that on the morning of 6 ^th April, 1978, he had carnal knowledge with the female [deletion] at a house situated at … He stated that he was well aware that the female was 15 years of age and that by having carnal knowledge of her he was committing an offence. The female [deletion] was a willing partner to each and every act of sexual intercourse she had with the defendant.’

Consideration

20 On the basis of the information contained in the Court Brief of the Queensland Police, I find that on 7 April 1978, UY was convicted of an offence under section 215 of the Criminal Code Act 1899. Although UY’s Crimtrac record states that he was found guilty of an offence of unlawful carnal knowledge of a girl under 17Yrs, the age of the girl is clearly an error and should be 16YRS.

21 On the information that is available to the Tribunal, UY would appear to have pleaded guilty to the charge and he was dealt with summarily on the basis of his admissions. I accept UY’s submissions that he did not have any legal assistance at the time. However, as I explained to him, it is not the role of the Tribunal to look behind the conviction recorded by the Brisbane Magistrates Court. The circumstances of the conviction also appear to be, in part, consistent with what UY had stated in his application to the Tribunal in that the victim was his girlfriend at the time, which was known to her parents. Again this is not relevant for the purposes of determining UY’s standing to make his application under section 33I of the Act.

What must be determined is whether, by reason of his 1978 conviction UY, is a ‘prohibited person’ as defined in section 33B of the Act. As mentioned above, he is a ‘prohibited person’ if the offence for which he was convicted is found to be a ‘serious sex offence’. As pointed out in the submissions of the Commissioner, had the acts and omissions that constituted the offence under Queensland law been committed in New South Wales, these acts and omissions would have been an offence under the then section 71 of the Crimes Act 1900 (NSW) (now section 66C). Furthermore, this offence was punishable for more than 12 months imprisonment.

22 Accordingly, I find that UY is a ‘prohibited person’ by reason of his 1978 conviction for unlawful carnal knowledge of a girl under the age of 16 years.

23 On the basis of this finding, I also find that, without obtaining the leave of the Tribunal, UY has no standing to bring this application as his 1978 conviction was a conviction for an offence similar to section 66C of the Crimes Act 1900 (NSW)(see subsection 33G(1)(b) and (2) of the Act).

24 However, as I have explained, UY can only obtain leave if the circumstances giving rise to his conviction satisfy the other two requirements prescribed in subsection 33G(2) of the Act. One such requirement is that the offence did not involve circumstances of aggravation. This, on the information available to the Tribunal is clearly satisfied. It is the requirement that at the time the offence was committed UY was no more than 3 years older than the victim, which is not satisfied. It is not disputed that UY was 19 years and 6 months of age at the time the offence was committed. And while UY has stated that the victim was 16 years of age, this is not reflected in the summary of facts in the Court Brief of the Queensland Police Department.

25 As I explained to UY, the Tribunal does not have any discretion in this regard. If one or more of the requirements of subsection 33G(2) of the Act are not met, a ‘prohibited person’ whose ‘serious sexual’ offence falls within subsection 33G(1)(b) is not able to seek the leave of the Tribunal to bring an application for an order under sections 33H or 33I.

Conclusion

26 In light of my findings, UY does not have standing to bring his substantive application of his application for a stay as the ‘serious sexual’ offence of which he was convicted some 32 years ago falls within section 33G of the Act. Accordingly, the appropriate order is an order that UY’s application be dismissed.

27 On the basis of the material before Tribunal I have found that UY is a ‘prohibited person’ for the purpose of the Act and by reason of this he is prohibited from working in ‘child-related employment’ as defined in the Act. Whether UY’s former or proposed employment is ‘child-related employment’, as defined in subsection 33(1) of the Act, is a matter on which UY will need to seek further independent advice.