v v Commission for Children and Young People

[2001] NSWADT 96

CITATION:	V -v- Commission for Children and Young People [2001] NSWADT 96
DIVISION:	Community Services Division
PARTIES:	APPLICANT V RESPONDENT Commission for Children and Young People
FILE NUMBER:	014013
HEARING DATES:	6/4/01
SUBMISSIONS CLOSED:	06/03/2001
DATE OF DECISION:	06/06/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 Interpretation Act 1987
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 (10 February 2000) Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998) Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 (9 February 1999) Minister for Immigration and Ethnic Affairs v Teoh (1995) 57 FCR 194 Franklins Limited v Penrith City Council and Campbells Cash and Carry Pty Limited [1999] NSWCA 134 (13 May 1999 A and The Commission for Children and Young People (No 2) [2000] NSWIRComm 219 (27 September 2000) Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 FCT v Smorgan (1977) 16 ALR 721 Public Transport Commission of NSW v Murray More (NSW) Pty Ltd (1975) 6 ALR 271
REPRESENTATION:	APPLICANT J Wormington, barrister RESPONDENT M Adofacai, solicitor
ORDERS:	1. Subject to paragraph 2, The Child Protection (Prohibited Employment) Act 1998 is not to apply to Mr V in respect of the offence of carnal knowledge for which he was convicted on 9 March 1981 on condition that:; Mr V not engage in any child-related employment (as defined by the CP (PE) Act) involving females between the ages of 12 and 18 years. ; 2. If the Commissioner or the applicant wish to make any submissions in relation to the proposed condition, they should contact the Registry within 7 days of the date of this decision. If no contact is made within that time, an order will be made as outlined above, with the proposed condition.; 3. Pursuant to s 9(10) the Tribunal will notify the Commissioner of Police of the terms of this order.

Introduction
1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the CP (PE) Act) is not to apply to Mr V in respect of the offence of carnal knowledge for which he was convicted on 9 March 1981. Mr V is applying for a declaration that the CP (PE) Act does not apply to him so that he can coach soccer and be involved with his children’s school activities.

2 On 6 April 2001 the Tribunal stayed the operation of a prohibition under the Act under s 9(6) of the CP(PE) Act pending further determination of the Triubnal. The stay was made on condition that Mr V not engage in any child related employment other than coaching soccer.

3 In the Community Services Division of the Tribunal it is an offence to publish or broadcast the name of any person who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of: s 126(1) Administrative Decisions Tribunal Act 1997 (ADT Act).

4 Although s 126(2) of the ADT Act contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, I have decided, because of the sensitivity of the information in this case, not to publish the applicant's name and to delete any other information which could lead to his identification. In these reasons I refer to the applicant as "Mr V". The official copy of the orders provided to the parties includes the name of the applicant.

5 Following the hearing, I allowed the parties some time to present any further written submissions. Ms Adofaci, for the Commissioner, provided written submissions on 12 April 2001. Mr Wormington, on behalf of Mr V, provided written submissions dated 3 May 2001.

Legislative provisions

6 Subject to certain defences and transitional provisions, s 6(1) of the CP (PE) Act makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment.

7 A "prohibited person" is defined in s 5 of the Act. That section states that:
(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.

8 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) of the CP (PE) Act. There is no dispute in this case that the offence of carnal knowledge, for which Mr V was convicted on 9 March 1981, is a “serious sex offence” or that Mr V is a prohibited person.

9 By virtue of s 5(2) of the CP (PE) Act, a person is not a prohibited person in respect of an offence if the Tribunal makes an order under s 9 that the CP(PE) Act is not to apply to the person in respect of the offence. So far as is relevant to these proceedings, s 9 states, in part, that:
(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.
(2) A relevant tribunal is:
(a) the Industrial Relations Commission, or
(b) the Administrative Decisions Tribunal.
(3) …
(4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.
(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(b) the age of the person at the time those offences were committed,
(c) the age of each victim of the offences at the time they were committed,
(d) the difference in age between the prohibited person and each such victim,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.

(6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.
(7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.
(8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal.
(9) Orders under this section may be made subject to conditions.

10 In their written submissions, the Commissioner argued that the Tribunal must determine “on the balance of probabilities” whether or not it is satisfied that the applicant poses a risk to the safety of children.

11 The Tribunal agrees that the civil standard of proof is applicable however, given the gravity of a finding that a person poses a risk to the safety of children, the Briginshaw standard should be applied. ( Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.) That standard requires the Tribunal to be comfortably satisfied that the applicant does pose such a risk.

Evidence

12 The documentary evidence in this matter included:
• Mr V's application to the Tribunal;
• three versions of a report of Jenny Howell, consulting psychologist, dated 1 April 2001;
• three testimonials, two dated 20 March 2001 and one dated 21 March 2001; and
• criminal history and associated documents relating to Mr V.


13 Mr V is 39 years old and has been married for nearly 20 years. He has five children ranging in age from 7 to 18 years. He has lived in the same house for 16 years. He has participated in his children’s school activities including coaching his son’s soccer team for the past 8 years, volunteering and assisting on school excursions and transporting children to school and sporting events. In 1994 Mr V founded the school chess club and coached students in chess. He is no longer involved in that activity.

14 The reason Mr V gave for seeking an order from the Tribunal was that he is the coach of his son’s under 12 soccer team and he would like to be able to be involved in various school activities. He is a committee member of a local soccer club.

15 Mr V gave oral evidence admitting that he was convicted of the offence of carnal knowledge on 9 March 1981. The female victim was Mr V’s girlfriend at the time. The victim had run away from home because of alleged abuse by her father and Mr V “snuck her into (his) bedroom.” Mr V said he loved her and the act of sexual intercourse was consensual. He was 17 years old at the time of the conviction and the victim was 14 years old.

16 Mr V has several other convictions which became the focus of concern throughout the hearing even though they are not “serious sex offences” under the CP (PE) Act. These offences were as follows:
• 26/6/74: break enter and steal and break enter and steal with intent;
• 24/6/77: near building with intent to peep and pry (3 counts);
• 8/2/80: stealing;
• 7/383: stealing;
• 4/1/86: peep and pry; and
• 25/7/88 stealing.


17 The “peep and pry” offences were of particular concern to the Commissioner and to Ms Howell, the psychologist who gave evidence in these proceedings. The first offence of “peep and pry” occurred when Mr V was 15 years old. He said he was walking home when he heard a noise and he could see a light on and the window open, so he went up the driveway to have a look. He saw a woman through an open window. There was nothing obscuring his view and he could see she was preparing to bathe. He stopped to look. He was convicted of the offence of “peep and pry” and committed to a juvenile detention centre. Although Mr V could not recall the precise details, the records indicate that he was convicted of three counts of peep and pry which took place over a period of three days at different residences.

18 The next offence of “peep and pry” occurred when Mr V was 26 years old. At that time he was married and had young children. He was out riding a bike when he said he needed to go to the toilet. He entered a property containing a block of units and looked through the window. The woman in the room was fully clothed, but Mr V admitted that had she been undressing he would have looked at her. He heard someone call out behind him and turned to see that it was a police officer. He was arrested and convicted of “peep and pry.”

19 Mr V said he loves his family very much and he would never attempt to do anything criminal like “peep and pry” or stealing offences again because it would damage his relationship with his wife and children. He said he would be happy to participate in counselling if the Tribunal saw that as appropriate.

20 Ms Howell, a registered psychologist, prepared a report at the request of the Commissioner. She has a clinical practice where she works mainly with adolescents. Since 1995 part of her job has been preparing risk assessments for various courts and Tribunals. Ms Howell prepared three versions of a report, all of which were made available to the Tribunal. The versions differed in relation to their structure and conclusions. Before considering the reasons for these three versions and Ms Howell’s conclusions, I will give a brief outline of the Ms Howell’s definition of voyeuristic behaviour, the testing she undertook and the results of that testing.

21 According to Ms Howell:
Voyeuristic behaviour involves the act of observing unsuspecting individuals who are naked, in the process of undressing, or engaging in sexual activity. The act of looking is for the purpose of achieving sexual excitement, and generally no sexual activity with the observed person is sought.

22 Ms Howell administrated the Multiphasic Sex Inventory (MSI; Nichols & Molinder, 1984). This tool has been developed to assess the psycho-sexual characteristics of sexual offenders. It is a 300 item self-report questionnaire with scales for sexually deviant acts, cognitive processing, behavioural aspects of offences and deceptive styles. Some of the results of the testing were that:
• on the validity scales Mr V’s scores indicated that he was ‘faking good’ that is, attempting to portray himself as someone who is not interested in sex including ‘normal’ desires, while at the same time justifying sexual deviance; and
• on the lie (exhibitionism) scale Mr V scored in the range of persons who tend to suppress their interest in sexually deviant behaviour and specifically voyeuristic behaviour.


23 Ms Howell found that Mr V’s resistance to reflecting on his offences, and his denial of the peep and pry offence in 1986 (by saying he was going to the toilet) stood in the way of understanding how he came to commit them. This factor increased the risk of recidivism because it prevented him from putting in place the appropriate strategies to avoid offending in the future.

24 Ms Howell also applied the Static-99 (Hanson & Thornton, 1999) actuarial measure. This scale is based on previous convictions, history of violence, stability of relationships, the person’s age and the nature of the sexual offence. Mr V’s score falls within the medium-high risk category. According to Ms Howell, this risk relates to re-offending in relation to the voyeuristic behaviour evidenced in the peep and pry offences. Of those offenders in the normative population who scored in this range, 26% were re-convicted of a sexual offence within five years, and 36% within fifteen years.

25 Ms Howell’s first report concluded that, “It is my professional opinion that Mr V does not pose a significant risk to the safety of children generally.” Ms Howell gave evidence that following the submission of her first report she received a phone call from an officer of the Crown Solicitors Office and as a result made changes to her report. She said that following the provision of the second report she was again contacted by telephone and subsequently provided a third report.

26 The conclusion in Ms Howell’s third report was that “with regard to females between the age of puberty and eighteen years Mr V poses a greater than average risk.” In addition, she added the following opinion which was not in the original report: “Mr V demonstrated psycho-sexual immaturity suggests that if the ‘opportunity’ to look at nude adult females presents itself again in the future, then he will look.”

27 By way of explanation, Ms Howell said that when she wrote the first report she did not take into account the age of a child under the PE (CP) Act which is 18 years. She had in mind 12 year old boys because she understood that Mr V’s application related to the coaching of his son’s soccer team. She said that she made a mistake in not realising her assessment should relate to all children including girls between the ages of 12 and 18. Ms Howell also said that while her opinion was fairly definite in her original report, it was equivocal in the later reports. She said that while she does not consider Mr V a risk to children (apart from girls between 12 and 18) “it’s hard to give a categorical statement around anyone’s future behaviour.”

28 She agree that by overlooking the fact that the legislation relates to children between 12 and 18 years of age, she may have been incompetent. She denies that she was manipulated into changing her report by the officers from the Crown Solicitor’s Office or that she changed her report so that she would not prejudice her chances of receiving more work from the Commission.

29 In her oral evidence, Ms Howell concluded that:
. . . whilst at the moment he is not involved in anything (relating to females between 12 and 18) I guess there is the potential in the future . . . I guess at the end it comes back to the peep and pry offences because they are opportunistic offences so should Mr V be in a situation where girls of sixteen or seventeen are there and he’s perhaps wandering - its just that it’s the opportunity that we have to look at and whilst many people have the opportunity it’s Mr V’s past behaviour that gives cause for concern in terms of any future behaviours. (Words in brackets added.)

30 Ms Howell’s conclusion was that the risk that Mr V poses to girls between the ages of 12 and 18 is that they he will look at them while they are undressing or in the nude. She said the risk was greater than average because it had occurred on two previous occasions.

31 Ms Howell agreed that certain factors such as Mr V’s age, the stability of his marriage and family life, his ties within the community and the consequences for him personally of committing further offences, would tend to reduce the risk that he would act opportunistically to look at nude females in the future. Furthermore, on the basis of information provided in her interview with Mr V, Ms Howell concluded that his apparent preoccupation with voyeurism may be mediated by established routines and behaviours in Mr and Mrs V’s sexual relationship. She also agreed that at the time of the commission of the second offence Mr V had just moved into the community and his children were too young to be aware of his conviction and its implications.

32 Ms Howell told the Tribunal that Mr V had certain strategies in place to minimise any risk of re-offending. These included not being alone and having a “hands off” policy when coaching his son’s soccer team.

33 Ms Howell mentioned in her final report that Mr V would benefit from therapy with a psychologist in an attempt to understand the effect that life events have had on his cognitive development and his behaviour.

Applicant’s submissions

34 Mr Wormington submitted that neither of the peep and pry offences involved children and they are not “serious sex offences” under the CP(PE) Act. But for the conviction for carnal knowledge, Mr V would not be a prohibited person.

35 The first offence took place when Mr V 15 years old. Relevant considerations under s 9(5)(f) which would tend to mitigate against the possibility that Mr V is a risk to the safety of children include:
• the fact that it is 13 years since the last offence of a sexual nature;
• Mr V’s domestic circumstances, particularly the fact that his children are now old enough to be aware if Mr V was charged or convicted of any other sex offences;
• Mr V is able to act in a voyeuristic manner within the stability and safety of his relationship with his wife;
• Mr V has been a long term resident of the community in which he lives; he has stable employment and he is well known as a soccer coach;
• Mr V’s forthright evidence; and
• the testimonials of other members of the community whose children have been looked after by Mr V.


36 Mr Wormington made strong submissions in relation to the reliability of Ms Howell’s report. He noted that her first two reports stated that “To date Mr V’s peep and pry offences have involved adult females and both the MSI and clinical interview did not indicate any reason to suppose that his preoccupation with voyeurism would pose a risk to children in the future.” Ms Howell concluded in that report that “It is my professional opinion that Mr V does not pose a significant risk to the safety of children generally.”

37 However, in the final report, neither of these comments appeared. Instead, Ms Howell concluded that:
Under the child Protection (Prohibited Employment) Act 1998, children are defined as being less than eighteen years of age. It is my opinion that with regard to females between the age of puberty and eighteen years Mr V poses a greater than average risk. I do not believe, however, that he presents an above average risk to boys, and girls below the age of puberty. This opinion is based on his reported past behaviour, and the results obtained from the MSI.

38 Ms Howell’s report was changed on three occasions. Mr Wormington queries why her conclusions in later reports contradict her earlier conclusion when there had been no further evidence provided or taken into account. Mr Wormington posed three possible reasons for these changes: first, Ms Howell is incompetent and her conclusions are of no assistance to the Tribunal; secondly, Ms Howell changed her report to assist the respondent’s case in the hope that she would obtain ongoing work from the respondent; and thirdly that Ms Howell was manipulated into substituting her original conclusion for a totally inconsistent conclusion. Mr Wormington submitted that depending on which of these options the Tribunal accepted, either the first report should be relied on, or none of Ms Howell’s evidence should be given any weight.

39 The only “risk” identified by Ms Howell in her final report is that “Mr V’s demonstrated psycho-sexual immaturity suggests that if the opportunity to look at a nude adult female presents itself again in the future, then he will look.” Mr Wormington submitted that this conclusion suggests that Mr V has no control over his desires. He maintains that that conclusion is not supported by any evidence. In his view, Ms Howell is saying that in light of past behaviour she cannot say that Mr V is definitely not a risk to children. However, in Mr Wormington’s view, it does not follow that because Ms Howell cannot predict future behaviour and cannot say that Mr V is not a risk; that he is a risk.

Respondent’s submissions

40 The respondent submitted that Ms Howell’s evidence that Mr V poses a greater than average risk to females between the ages of 12 and 18 should be accepted. In their view, that risk is of particular concern given that his youngest daughter is currently 8 years old and Mr V has a history of involvement with school activities.

41 The respondent outlined Ms Howell’s conclusions in relation to the social sexual desirability scale, the sexual obsessions scale, the justifications scale, the MSI, the Lie scales, the treatment attitudes scale and the Static 99.

Findings

42 I indicated at the end of the hearing that I accepted that Ms Howell was telling the truth when she gave evidence about the reasons for changing her report. I accept that Ms Howell did not turn her mind to the possibility that females between 12 and 18 could be victims of “peep and pry” offences as they were no different, physically, from adult females. I accept that Ms Howell did not change her report because she was manipulated or because she wanted to please the Commissioner in order to obtain more work. Her oversight can be explained to some extent by the fact that this was the first report of its kind that she had prepared and she was not as familiar as she could have been with the legislative provisions.

43 In Ms Howell’s view, which I accept, is that based on the interview and testing that she did and in particular Mr V’s previous convictions for ‘peep and pry’, he poses a greater than average risk to the safety of females between the ages of 12 and 18. There is some evidence which make it less likely Mr V will re-offend, I am satisfied, based on the Briginshaw standard, that he poses a risk, however minimal, to the safety of females aged between 12 and 18.

Reasons

44 Tribunal’s interpretation of s 9. The Commissioner interpreted s 9 of the CP (PE) Act as giving the Tribunal a discretion to grant a declaration or to refuse to grant a declaration: s 9(1). In exercising its discretion, the Tribunal must take into account the factors set out in s 9(5). The Commissioner went on to characterise s 9(4) as a threshold test which has to be satisfied before the Tribunal’s discretion can be exercised. In other words, the Tribunal must first consider that the person does not pose a risk to the safety of children before going on to exercise its discretion under s 9(1).

45 The Commissioner further submitted that a declaration applies to all child related employment and cannot be qualified by conditions restricting employment in any way. Whether or not an applicant poses a risk to the safety of children cannot be determined by taking into account conditions which may be imposed under s 9(9).

46 Mr Wormington, on behalf of Mr V, did not go into any detail in his written submission on the meaning of s 9 but appeared to accept the Commissioner’s characterisation that s 9(4) is a threshold test.

47 The use of the word “may” in s 9(1) suggests that the Tribunal has a discretion to make an order that the Act does not apply to Mr V. (See Interpretation Act 1987 s 9.) That discretion must be exercised by taking into account the factors listed in s 9(5)(a) to (f) which includes all matters the Tribunal considers relevant.

48 I understand the Commissioner’s submission to be that s 9(4) constitutes what is known as a “jurisdictional fact” or “condition precedent” to the exercise of the Tribunal’s discretion. The alternative view is that s 9(4) is incidental to the Tribunal’s discretion to make a declaration under s 9(1). In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 (10 February 2000) the High Court defined the term “jurisdictional fact” as follows:
The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.

49 The leading case on this issue is Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998). McHugh, Gummow, Kirby and Hayne JJ said at [91] of that case that:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

50 In interpreting paragraphs [91] to [93] of the decision in Blue Sky , Spigelman CJ, Mason P and Meagher JA in Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 (9 February 1999), said at [38] that:
The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g. Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (`objectivity') and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (`essentiality'). (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91]-[93]).

51 These cases provide the framework for determining whether s 9(4) constitutes a jurisdictional fact or a matter incidental to the exercise of the Tribunal’s discretion. In particular, three matters are relevant: the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

52 Language. Looking firstly at the language in s 9(4), the Tribunal must not make an order unless it considers that the person does not pose a risk to the safety of children. In Timbarra Protection Coalition Inc v Ross Mining NL & Ors the Court of Appeal said at [42]:
Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. (See Craig Administrative Law 3rd ed, 1994, 368-370; Minister for Immigration and Ethnic Affairs v Teoh (1995) 57 FCR 194, 198C). Where such words do not appear, the construction is more difficult.

53 The word “considers” is similar to “opinion”, “belief” or “satisfaction” in that it refers to the mental state of the decision maker. In certain cases, the existence of the mental state of satisfaction has been held to be an ‘essential condition’ preliminary to the exercise of power. (See for example, Franklins Limited v Penrith City Council and Campbells Cash and Carry Pty Limited [1999] NSWCA 134 (13 May 1999) at [28]. In relation to s 9(4), the language used is not determinative of whether that sub-section constitutes a jurisdictional fact.

54 Subject matter and objects. The long title of the CP (PE) Act is “An Act to prohibit the employment in child-related employment of persons found guilty of committing certain serious sex offences; and for related purposes.” The main purpose of the legislation is to minimise any risk to the safety of children by preventing people convicted of certain sex offences from engaging in child related employment. A related purpose is to allow people who do not pose a risk to apply for, undertake, or remain in child related employment.

55 If s 9(4) is a jurisdictional fact, then any person who poses a risk to the safety of children could not engage in child related employment with any children, regardless of those children’s ages or gender. Although this conclusion is consistent with the objectives of the CP (CE) Act, it makes s 9(9) superfluous. That sub-section allows the Tribunal to make orders subject to conditions. (The Tribunal also has a general power to make orders subject to conditions: s 85 ADT Act.) The only conditions which could be relevant are those which attempt to minimise any risk to children. Following submissions by the Commissioner, this Tribunal has routinely made stay orders subject to conditions which relate to the risk to the safety of children. In the present case a stay order was made on condition that Mr V not engage in any child related employment other than coaching soccer. Conditions can also relate to matters such as attending counselling or ensuring that another adult is present when the applicant is interacting with children. Set out below are two examples of conditions attached to stay orders made by the Tribunal:
• that the applicant not apply for or undertake any child related employment as defined in the Child Protection (Prohibited Employment) Act 1998 other than voluntary “employment” as an Australian Rules Football umpire for children under the age of 18 years; and
• that the applicant not apply for or undertake any child related employment as defined in the Child Protection (Prohibited Employment) Act 1998 other than driving school buses.

56 The Industrial Relations Commission also has jurisdiction in certain circumstances to make orders under s 9 of the CP (PE) Act. In A and The Commission for Children and Young People (No 2) [2000] NSWIRComm 219 (27 September 2000), Wright J granted a stay under s 9(6) subject to certain conditions including that:
The stay remains in force only while the applicant is employed in his current employment;
(ii) during the course of that employment the applicant shall not have unsupervised face to face contact alone with females under the age of eighteen years;
(iii) the applicant shall consult a suitably qualified counsellor to be chosen by him in consultation with his legal advisers. The only specific condition in that regard is that the person be suitably qualified and recognised in the field of counselling;


57 Wright J said at [43]
The conditions that are to be imposed should be approached on an appropriately cautionary basis. This approach arises from the nature of the interlocutory proceedings and the fact that such conditions are designed to put beyond any reasonable doubt that the applicant does not pose a risk in a relevant sense to the safety of children.

58 Although these comments were made in the context of a stay application, the test in s 9(4) applies equally to stay orders and final orders.

59 The matters listed in s 9(5) are all related to the question of whether an applicant poses a risk to the safety of children. It cannot have been parliament’s intention that the Tribunal would come to a view in relation to s 9(4) without considering the matters set out in s 9(5).

60 Consequences for the parties. It is a rule of statutory construction that when choosing being competing constructions, both of which are consistent with the objects of the Act, the consequences of a particular interpretation can be taken into account. ( Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 at 169-170.) The consequence to applicants of interpreting s 9(4) as a jurisdictional fact are that the Tribunal must consider, prior to exercising its discretion, that the applicant does not pose a risk to the safety of children in general. The effect of such a finding would be that applicants would be excluded from all child related employment regardless of whether or not they were a risk to the children who are the subject of that employment. For example, an applicant may pose no risk to male children, but nevertheless be excluded from all child related employment including employment which only involves male children.

6 1 An applicant may suffer hardship if they are restricted in their choice of employment, including voluntary activities. In FCT v Smorgan (1977) 16 ALR 721 Stephen J said at 729 that “a construction of a statute which interferes with the legal rights of a subject to a lesser extent and produces the less hardship is to be preferred to another, having the opposite effect.” Similarly, in Public Transport Commission of NSW v Murray More (NSW) Pty Ltd (1975) 6 ALR 271 at 282, Gibbs J said that “where two meanings are open . . . it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.”

62 This analysis suggests that s 9(4) does not constitute a jurisdictional fact but is a matter which is incidental to the exercise of the Tribunal’s discretion. The Tribunal cannot make an order unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. However, in determining whether the person does pose a risk, the matters set out in s 9(5) must be addressed. In addition, any proposed conditions, as envisaged by s 9(9), can be taken into account.

63 Application of s 9 to the evidence. Section 9(5) sets out factors which the Tribunal must take into account in exercising its discretion under s 9(1). In Mr V’s case the offence was one of carnal knowledge committed when he was 17 years of age. The victim was 14 years of age and the difference between their ages was 3 years.
64 In relation to s 9(5)(e), the seriousness of Mr V’s total criminal record, the peep and pry offences committed in 1977 and 1986 are the convictions which are of most concern. Mr V gave evidence about the circumstances of the other offences, but they are not relevant to any risk that Mr V may pose to the safety of children.

65 Ms Adofaci, on behalf of the Commissioner, submitted that “such other matters as the tribunal considers relevant” in s 9(5)(f) include Ms Howell’s expert evidence. Her evidence was that Mr V poses no risk to males under the age of 18 or to females who have not reached puberty. She conceded that the offence of carnal knowledge was not of concern in terms of Mr V being a risk to the safety of children.

66 On the basis of the evidence and reasoning set out above, I am satisfied that I should make an order under s 9(1) subject to certain conditions. Ms Adofaci, on behalf of the Commissioner, requested that if I was inclined to make an order, they be given an opportunity to make submissions on the conditions which should be imposed. My preliminary view is that I should make the order subject to the condition that:
Mr V not engage in any child-related employment (as defined by the CP (PE) Act) involving females between the ages of 12 and 18 years.

67 If the Commissioner or the applicant wish to make any submissions in relation to this proposed condition, they should contact the Registry within 7 days of the date of this decision. If no contact is made within that time, an order will be made under s 9(1) with the proposed condition.

68 Pursuant to s 9(10) the Tribunal will notify the Commissioner of Police of the terms of this order.