V (No. 2) v Commission for Children & Young People [2001] NSWADT 199 (27 November 2001)

Last Updated: 31 December 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: V (No. 2) -v- Commission for Children & Young People [2001] NSWADT 199

PARTIES: APPLICANT

V

RESPONDENT

Commission for Children & Young People

FILE NUMBERS: 014013

HEARING DATES: 28/06/2001

SUBMISSIONS CLOSED: 10/08/2001

DECISION DATE: 27/11/2001

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998

CASES CITED:

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

J Wormington, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

P Singleton, barrister

ORDERS: 1. That the Child Protection (Prohibited Employment) Act 1998 does not apply to Mr V in respect of the offence of carnal knowledge for which he was convicted on 9 March 1981 subject to the following condition: Mr V not engage in any child-related employment (as defined by the Child Protection (Prohibited Employment) Act 1998) involving females between the ages of 12 and 18 years.

2. Mr V must notify any existing employers who engage in child related employment, of the terms of this order.

Reasons for Decision:

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides:

(1A)

(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.

INTRODUCTION

1 On 6 June 2001, the Tribunal handed down a decision in this matter. That decision should be read in conjunction with these reasons. The 6 June 2001 decision concluded that:

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 Commission, 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.

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.

2 The Tribunal reconvened on 28 June 2001 to hear submissions from the parties in relation to these preliminary conclusions. Written submissions were filed by the applicant on 3 August 2001. The Commission filed written submissions in response on 10 August 2001.

Respondent's submissions

3 The respondent opposed the condition suggested by the Tribunal and instead submitted that the following conditions be imposed:

1. Mr V is to provide within 14 days to his soccer association/club a letter advising of:

a) the terms of this order

b) of his conviction for carnal knowledge

c) of his conviction on 24 June 1977 of three counts of being near a building with intent to peep and pry; and

d) of his conviction on 4 January 1988 for peeping and prying

2. Mr V is not to work in any child-related employment (within the meaning of the Child Protection (Prohibited Employment) Act 1998) except:

a) for coaching, managing or supervising any all-male sporting team or recreational group of which a son of his is a member;

b) for any employment approved by the Administrative Decisions Tribunal (which may impose conditions on any such approval, which conditions shall be taken as being incorporated into these conditions) upon application made to it in accordance with Condition 6 below;

3. Mr V is to undergo, at his own expense, not less than 2 hours counselling and therapy per month by a qualified psychologist approved by the Commission for Children and Young People until the psychologist determines than no further counselling or therapy is appropriate or until the Administrative Decisions Tribunal determines, upon an application made to it in accordance with Condition 6 below, that he may discontinue the counselling and therapy;

4. Mr V is to instruct the psychologist retained under Condition 3 to advise the Commission for Children and Young People of any breach of Condition 3;

5. Mr V is to submit to an assessment by a psychiatrist or psychologist retained for the purpose by the Commission for Children and Young People (the payment of the psychiatrist or psychologist to be at the expense of the Commission) upon the receipt of at least 14 days notice;

6. Mr V may, upon seven days notice to the Commission for Children and Young People, apply to the Administrative Decisions Tribunal for approval to undertake child-related employment not otherwise permitted by these conditions or for approval to discontinue the therapy and counselling required by Condition 3 above.

4 In the Commission's submission, the first condition, that Mr V's soccer association be informed, flows from the grant of permission to work for that organisation even though the applicant does pose a risk to children. It is appropriate that the Association have some background knowledge of Mr V's offences so that they may take any action they think necessary.

5 According to the Commission the second condition is similar to that proposed by the Tribunal but where the Tribunal has found that an applicant does pose a risk to some children, each particular job should be approved rather than giving a general approval subject to a particular exception. The proposed condition avoids any uncertainty about whether a particular job is one "involving" females between 12 to 18 years of age.

6 The third and fourth conditions relating to counselling are justified because they addresses the risk that Mr V poses to girls between 12 and 18 years. The purpose of counselling is to address and minimise the risk that Mr V poses to females in this age group. The fourth proposed condition is designed to ensure compliance with the third condition.

7 The fifth proposed condition provides a means of monitoring the risk posed by Mr V.

The sixth proposed condition ensures that Mr V is not deprived of appropriate employment and that he does not have to continue with unnecessary counselling.

Applicant's submissions

8 The applicant's representative submitted that the Tribunal's proposed order and condition set out above is sufficient to address any concerns of the Commission arising from the evidence before the Tribunal. It is clear and unambiguous.

9 In relation to the Commission's first proposed condition, the applicant says that notifying the soccer association would have no purpose unless the association was to inform the executive of the club. Because the members of the executive are re-elected each year, it would not be long before everyone in the club knew of Mr V's past. This disclosure would have an adverse effect on Mr V and his children.

10 In relation to the second proposed condition, the applicant prefers the simple, blanket condition proposed by the Tribunal. The proposed condition is unduly onerous on the applicant and potentially on the Tribunal and its staff because it would require the applicant to make numerous applications in respect of potential employment that has no connection with any identified risk.

11 In response to the third and fourth proposed condition, the applicant submitted that Ms Howell's suggestion of counselling was not aimed at reducing risk to children but at assisting Mr V " . . . to understand the effect that life events have had on his cognitive development and his behaviour." While Mr V may personally benefit from counselling there is no evidence to suggest that counselling would affect the risk identified by Ms Howell.

12 The applicant's representative stated that they do not understand the reason for proposing ongoing assessment. The Commission has relied on Ms Howell's assessment and cannot now burden the applicant with further assessments at their whim.

13 The applicant's final submission was that the sixth condition should be amended as set out below and become a second paragraph to the condition proposed by the Tribunal:

Mr V may, on seven days notice to the Commission for Children and Young People, apply to the Administrative Decisions Tribunal for approval to undertake child-related employment not otherwise permitted by this condition.

Reasons and decision

14 In relation to the first proposed condition, there is no doubt that Mr V's existing employer (presumably the soccer club with which he is involved, rather than the soccer Association) needs to be advised of the terms of any order of the Tribunal. The effect of making a declaration under s 9 that the CP (PE) Act does not apply to Mr V subject to certain conditions, is that he is not a prohibited person: s 5(2). Mr V needs to advise his employer (the club) of the terms of the Tribunal's order so that they know, firstly that he is not a prohibited person and secondly that the Tribunal's declaration is subject to certain conditions. Disclosure of this information will ensure that the club is not committing an offence under s 8 of the CP (PE) Act.

15 There is no need for Mr V to notify the soccer club of any other information such as his previous convictions. There is no reason for singling out Mr V and requiring him to provide his employer with information that other employees are not legally obliged to provide. All his employer needs to know is that Mr V is not a prohibited person and the conditions of the Tribunal's declaration.

16 The second proposed condition that Mr V should be confined to the kind of child related employment in which he is currently engaged is not justified. The Tribunal's proposed condition addresses the finding that Mr V poses a greater than average risk to the safety of females between the ages of 12 and 18. There was no evidence justifying restricting his employment opportunities to coaching, managing or supervising an all-male sporting team or recreational group of which a son of his is a member. Although this is the area of voluntary employment that Mr V wishes to participate in at the moment, there is no justification for restricting his activities further. Similarly there is no justification for requiring the Tribunal to approve other kinds of employment on a one-off basis. Such a condition would be onerous, inefficient and unnecessary.

17 The third, fourth and fifth proposed conditions relate to counselling. The Tribunal did not find that counselling would eliminate or minimise the risk Mr V poses to the safety of pubescent females. The Tribunal chose to address that risk by imposing a blanket condition that Mr V not engage in child related employment involving females between the ages of 12 and 18. In these circumstances further conditions are not justified. If Mr V wants to undergo counselling, that is a matter for him.

18 The applicant's representative proposed a condition that Mr V be able to apply to the Tribunal for approval to undertake child-related employment not otherwise permitted by the proposed condition. Given the Tribunal's view that it has power to impose a condition on a declaration under s 9(9), a necessary corollary of that power is that it can add, remove or vary such conditions. Because this is a power that the Tribunal has, there is no need for an order to that effect.

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