P v Commisioner, New South Wales Commission for Children and Young People [2001] NSWADT 16 (7 February 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: P v Commisioner, New South Wales Commission for Children and Young People [2001] NSWADT 16

PARTIES: APPLICANT

P

RESPONDENT

Commissioner, New South Wales Commission for Children and Young People

FILE NUMBERS: 014003

HEARING DATES: 17/01/01, 30/01/01

SUBMISSIONS CLOSED: 30/01/2001

DECISION DATE: 07/02/2001

BEFORE: Hennessy N (Deputy President)Rogan L - MemberGelin B - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Child Protection (Prohibited Employment) Act 1998

CASES CITED: M v Commissioner NSW Commissioner for Children and Young People (2000 ADT

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

Commissioner, New South Wales Commission for Children and Young People

ORDERS: Orders made 30 January 2001: 1. The Child Protection (Prohibited Employment) Act 1998 does not apply to P in respect of the offence of "carnal knowledge of a girl under 17 years" for which he was convicted on 18 September 1974 .

Reasons for Decision:

Introduction

1 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. (Administrative Decisions Tribunal Act 1997 s 126(1).

2 Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we 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 we refer to the applicant as "Mr P" and to his first wife as "Mrs P." The official copy of the orders provided to the parties includes the name of the applicant.

3 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 P in respect of the offence of unlawful carnal knowledge of a girl under 17 years for which he was convicted in Queensland on 18 September 1974 and fined $50.00. Under s 9(6) of the CP(PE) Act, the Tribunal stayed the operation of a prohibition under the Act on 17 January 2001, pending further determination by the Tribunal. The hearing of the application for a declaration was conducted on 24 January 2001. Two tribunal members and Mr P were connected by phone to the hearing room. Following those proceedings, the matter was adjourned part heard in order for the Commissioner for Children and Young People (the Commissioner) to obtain further evidence in relation to the offence from various agencies in Queensland. No further evidence was able to be obtained by that date but the Tribunal obtained a Certificate of Indictment which confirmed the details of the offence and named Mrs P as the victim.

4 Mr P is applying for a declaration that the Act does not apply to him, because his second wife wants to operate a Family Day Care program in their home. Mr P told the Tribunal that the Department of Community Services has advised his wife that they will not grant her a licence to operate unless the Tribunal provides a declaration that Mr P is not a prohibited person under the Act. While the reason for Mr P's application is not relevant to the Tribunal's decision (and we have no independent evidence of any action by the Department of Community Services) it seems unnecessary for that Department to rely on any order from this Tribunal as a prerequisite to granting a licence to operate a Family Day Care program.

5 Leaving that issue to one side, the question for the Tribunal to determine is whether it should declare that the CP(PE) Act is not to apply to Mr P in respect of the offence of unlawful carnal knowledge for which he was convicted on 18 September 1974. The legislative provision relevant to the determination of that issue are set out below.

Legislative provisions

6 In summary, the Act makes it an offence for people convicted of "serious sex offences" to apply for or undertake "child related employment." The Act also makes it an offence for employers to do certain things in relation to a person convicted of such an offence. However, the Tribunal can make a declaration that the Act is not to apply to a person in relation to a specified offence. Further details are set out below.

7 Subject to certain defences and transitional provisions, the CP (PE) Act makes it an offence for a person convicted of a "serious sex offence" (as defined in s 5(3)) from applying for, undertaking or remaining in child-related employment. Section 6(1) states that:

A prohibited person must not:

(a) apply for child-related employment, or

(b) undertake child-related employment, or

(c) remain in child-related employment.

Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both.

(2) Defence

It is a defence to a prosecution for an offence against this section if the defendant establishes that he or she did not know, at the time of the commission of the offence, that the employment concerned was child-related employment.

8 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.

(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 9 declares that this Act is not to apply to the person in respect of the offence.

9 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) as follows:

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

(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 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

(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.

10 "Child" and "Child-related employment" are defined in s 3:

In this Act:

child means a person who is under 18 years of age.

child-related employment:

(a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised:

(i) employment involving the provision of child protection services,

(ii) employment in pre-schools, kindergartens and child care centres (including residential child care centres),

(iii) employment in schools or other educational institutions (not being universities),

(iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987),

(v) employment in refuges used by children,

(vi) employment in wards of public or private hospitals in which children are patients,

(vii) employment in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement,

(viii) employment in any religious organisation,

(ix) employment in entertainment venues where the clientele is primarily children,

(x) employment as a babysitter or childminder that is arranged by a commercial agency,

(xi) employment involving fostering or other child care,

(xii) employment involving regular provision of taxi services for the transport of children with a disability,

(xiii) employment involving the private tuition of children,

(xiv) employment involving the direct provision of child health services,

(xv) employment involving the provision of counselling or other support services for children,

(xvi) employment on school buses,

(xvii) employment at overnight camps for children, and

(b) includes any other employment of a kind prescribed by the regulations, but does not include any employment of a kind excluded by the regulations.

11 "Employment" is defined in s 3 as follows:

employment means (subject to the regulations):

(a) performance of work under a contract of employment, or

(b) performance of work as a self-employed person or as a subcontractor,

or

(c) performance of work as a volunteer for an organisation, or

(d) undertaking practical training as part of an educational or vocational course, or

(e) performance of work as a minister of religion or other member of a religious organisation.

12 Subject to certain transitional provisions, the Act also makes it an offence for an employer to do certain things including knowingly employing a prohibited person in child related employment. Section 8(1) states that:

An employer must not commence employing, or continue to employ, in child-related employment a person that the employer knows is a prohibited person.

Maximum penalty: 100 penalty units, in the case of a corporation, and 50 penalty units in any other case.

13 Section 9 of the CP (PE) Act allows the Tribunal to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that sections states 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.

(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) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order.

(11) The following applies to proceedings before the Administrative Decisions Tribunal under this section:

(a) the Tribunal may not award costs.

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

Issues

14 There are several questions which must be answered before the Tribunal can determine whether a declaration should be granted Those questions are:

(a) is Mr P a prohibited person within the meaning of that term in s 5 of the CP(PE) Act?

(b) if the answer to the question in (a) is `yes', does Mr P have to be applying for, undertaking or remaining in "child related employment" for the Tribunal to have jurisdiction to grant a declaration?

(c) if the answer to the question in b) is yes, is Mr P applying for, undertaking or remaining in "child related employment" as defined in s 3 of the CP (PE) Act?

(d) if the Tribunal has jurisdiction to grant a declaration to Mr P, does he pose a risk to the safety of children taking into account the provisions of s 9(5) of the CP(PE) Act?

Evidence

15 The documentary evidence in this matter consists of:

Mr P's application with a two page handwritten letter attached;

certificate of marriage dated 10 May 1975 between Mr and Mrs P;

decree nisi of dissolution of Marriage dated 20 May 1987 between Mr and Mrs P;

copy of NSW Criminal Record in respect of Mr P;

transcript of the proceeding on 17 January 2001;

statutory declaration signed by Mr P dated 18 January 2001;

statutory declaration signed by Mr P's second wife dated 18 January 2001;

Certificate of Indictment Details issued on 30 January 2001; and

personal profile of Mr P written by his second wife.

16 Mr P admitted that he was convicted of unlawful carnal knowledge of a girl under 17 years by the Brisbane District Supreme Court on 18 September 1974. According to Mr P he was 20 years old at the time of the offence and the girl was 15 years and 9 months. He says he had a:

"consenting relationship" with the girl which resulted in her getting pregnant 3 months before her 16th birthday, and her father would not agree to us getting married. Then had me arrested. I loved this girl very much and we had a happy marriage for several years - we divorced in 1987."

17 Another offence for which Mr P was convicted in Brisbane in 1972 was "steal with actual violence whilst armed with a dangerous weapon and in company." He was admitted to probation for a period of 3 years. In relation to that offence, Mr P said that:

I was involved - my father was involved in an armed robbery, just to put you in the picture, and after the fact of the robbery he asked me to drive him and the other person involved in the robbery somewhere, and in the transition of doing so I was informed of what they had done. I wasn't happy about it, but too late, and so when they actually got apprehended for the offence the other party brought my name into it and because I was classified as an accessory after the fact I was charged with that and was put on a very light probation.

18 Mr P is currently employed and works from early morning (about 6.30 am) to late afternoon (usually between 4 and 5 pm). Mr P said that there is a chance that the children his wife is caring for as part of the Family Day Care program, will still be there when he gets home from work. He stated that he will take no part in looking after any children, other than his own children. Similarly, a statutory declaration from his wife states that she will be solely responsible for the children in her care and that even if her husband is at home, he will not be undertaking any child care duties.

Findings of fact

19 The nature of the conviction and the fact that a fine of $50.00 was imposed is not in dispute. Mr P's assertion that the "victim" was 15 years and 9 months at the time of the offence and that he was 20 years and 2 months, is confirmed by the dates on the marriage certificate. Mr P's evidence that he married the "victim" on 10 May 1975 and remained married until 20 May 1987 is substantiated by the Certificate of Indictment details (which show the victim's name), the marriage certificate and the Decree Nisi of Dissolution of Marriage.

Reasons and decision

20 The first question is whether Mr P a prohibited person within the meaning of that term in s 5 of the CP(PE) Act. Mr P has been convicted of the offence of carnal knowledge of a girl under 17 years and fined $50.00. Under s 5(3)(b) an offence will be a "serious sex offence" if it is "an offence, involving sexual activity or acts of indecency, that was not committed in New South Wales 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. Under s 66C of the Crimes Act 1900 (NSW) the maximum penalty for having sexual intercourse with a child between 10 and 16 is 8 years imprisonment. That section provides that:

(1) Any person who has sexual intercourse with another person who is of or above the age of 10 years, and under the age of 16 years, shall be liable to imprisonment for 8 years.

(2) Any person who has sexual intercourse with another person who:

(a) is of or above the age of 10 years, and under the age of 16 years, and

(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person, shall be liable to imprisonment for 10 years.

21 The Tribunal is satisfied that the offence of carnal knowledge committed in Queensland on a girl aged 15 and 9 months would have been punishable by imprisonment for 12 months or more if committed in New South Wales. Consequently, Mr P is a "prohibited person."

22 The second question is whether Mr P has to be applying for, undertaking or remaining in "child related employment" for the Tribunal to have jurisdiction to grant a declaration. The CP (PE) Act creates certain offences all of which relate to the arrangements for employing or the actual employment of a "prohibited person" in "child related employment." It is not an offence for a prohibited person to apply for or undertake any employment which is not "child related employment" as defined by the CP (PE) Act. On that basis, Ms Adofaci representing the Commissioner, submitted that the Tribunal could not make a declaration that the Act is not to apply to a prohibited person unless that person was either committing an offence (by remaining in employment) or about to commit an offence (by applying for employment) under the Act. Although that submission makes some practical sense, (and is one which the Tribunal accepted in M v Commissioner NSW Commissioner for Children and Young People (2000 ADT, unreported 22/12/2000)) on closer examination, we do not think it is correct. Our reasoning is set out below.

23 Section 9(1) and s 5(1) and (2) are the relevant provisions. They provide that:

9 (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.

5 (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.

5 (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 9 declares that this Act is not to apply to the person in respect of the offence.

24 Section 9(1) gives the Tribunal power to make a declaration in relation to a prohibited person. There is no requirement, either in that sub-section or elsewhere in the section, that the person seeking the declaration be applying for, undertaking or remaining in child related employment. There are two consequences to the making of a declaration under s 9. Firstly, the Act is not to apply to the person. Secondly, under s 5(2) the person is not a prohibited person in respect of the offence the subject of the declaration. There does not appear to be any practical difference between these two consequences. Unless a person is a prohibited person, the Act has no application.

25 Our interpretation of the plain meaning of s 9 is that any prohibited person can apply for a declaration in respect of a specific serious sex offence. The consequence is that the Act does not apply to a person and/or the person is not a prohibited person. That means that he or she is free to apply for or undertake child related employment at any time, assuming he or she is not convicted of any other serious sex offence.

26 This interpretation promotes the purpose of the Act. While the principal purpose of the Act is to prevent a person who has been convicted of a serious sex offence from applying for or undertaking child related employment, the Act also has a secondary purpose. That secondary purpose is to allow such a person to apply for or undertake child related employment where they do not pose a risk to the safety of children. If declarations could only be made at a time when a person was in danger of committing an offence under the Act, it would be unduly restrictive. Once a prohibited person has a declaration in relation to any serious sex offences for which they have been convicted, they can lawfully disclose that they are not a prohibited person. That leaves them free to apply for or undertake child related employment at any time.

27 The final question is, does Mr P pose a risk to the safety of children taking into account the provisions of s 9(5) of the CP(PE) Act?

28 Ms Adofaci for the Commissioner submitted that the Tribunal should not proceed to decide this issue because there was insufficient evidence as to the seriousness of the offence. While Mr P had given evidence that the offence was committed in the context of a loving relationship, the Commissioner had been unable to obtain any evidence from any Queensland agency as to the circumstances of the offence and requested more time to do so.

29 The Tribunal did not accede to this request and decided to determine the issue on the basis of the available evidence. The Tribunal took the view that Mr P was a credible witness whose evidence about the circumstances of the offence should be accepted. His evidence of the ages of himself and the "victim" and the fact that he subsequently married her are corroborated by documentary evidence. The fact that he was convicted of carnal knowledge and not rape and that he was fined $50.00 also support Mr P's version that there were no aggravating circumstances. Mr P is entitled to have this matter dealt with as quickly as is practicable (See Administrative Decisions Tribunal Act s 73(5)(a)). He is currently not able to enter his own home after work, until all the children for whom his wife is caring have left. Although there may be other relevant material in existence, the Tribunal is satisfied that Mr P is telling the truth about the circumstances of the offence and is not prepared to delay resolution of this matter.

30 There is no evidence that Mr P poses a risk to the safety of children. The offence with which he was convicted occurred between two people who were not significantly different in age. We are satisfied on the basis of Mr P's evidence that the offence occurred in the context of loving relationship. Both Mr P's evidence and the documentary evidence establish that the couple subsequently married and remained together for about 12 years. Mr P's overall criminal record is not of concern, given the age and context of the other offence. In the Tribunal's view the evidence establishes that Mr P does not pose a risk to the safety of children.

Order

This Act is not to apply to Mr P in respect of the offence of unlawful carnal knowledge of a girl under 17 for which he was convicted in Queensland on 18 September 1974.

31 The Tribunal shall notify the Commissioner of Police of the terms of this order.