AR v Commission for Children and Young People [2002] NSWADT 12 (1 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: AR v Commission for Children and Young People [2002] NSWADT 12

PARTIES: APPLICANT

AR

RESPONDENT

Commission for Children and Young People

FILE NUMBERS: 014065

HEARING DATES: 24/01/2002

SUBMISSIONS CLOSED: 24/01/2002

DECISION DATE: 01/02/2002

BEFORE: Gormly P - Judicial Member

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998

CASES CITED: A v Commissioner, New South Wales Commission for Children and Young People (2000) NSWADT 151

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

M Adofaci, advocate

ORDERS: 1. The Child Protection (Prohibited Employment) Act 1998 does not apply to Mr AR in respect of the offence of "carnal knowledge" of which he was convicted in Bathurst on 24 May 1976

2. The order is not subject to any conditions. Pursuant to s 9(10) the Tribunal will notify the NSW Police Service and the Screening Unit of the Department of Community Services.

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 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 ( the Act ) not apply to Mr AR in respect of the offence of carnal knowledge for which he was convicted on 24 May 1976 at the Children's Court

2 No stay of the prohibition was sought in this matter.

Legislative provisions

3 Subject to certain defenses and transitional provisions s6(1) of the Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment

4 The terms `prohibited person' and ` serious sex offence' are defined in s5 of the Act. The term `conviction' is defined in s3 of the Act.

A v Commissioner, New South Wales Commission for Children and Young People (2000) NSWADT 151 (2 November 2000)

Mr A was a child at the time of the offence which brought him under the Act and he had admitted to that offence. This case dealt with the issues of whether Mr A had been "convicted" of a "serious sex offence" within the meaning of the Act. It was held that he did come within the meaning of the Act. There is no need to repeat the argument here suffice to say I concur with the Tribunal on each of those issues.

I find that Mr AR does come within the meaning of the Act.

5 The Administrative Decisions Tribunal has jurisdiction to make an order pursuant to s9 of the Act that a person is not a prohibited person with respect to an offence.

6 s9(4) of the Act says 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.

7 S9(5) says 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

Evidence

8 The documentary evidence in this matter included:

1 Exhibit A Mr AR's application to the Tribunal and attached 5 references. I note that each referee knew of the offence of carnal knowledge.

2 Exhibit 1 Bundle of documents filed for the Commissioner on 22 January 2002, which includes a list of the documents in the bundle.

3 Exhibit 2 Letter to the Applicant from the Department of Community Services Screening Unit dated 21 September 2001.

4 Exhibit 3 Letter from employer dated 16 January 2001.

9 Mr AR is now 42 years old. The Applicant has a solid working history. He has been employed by his current employer for the last 16 years. This employment does not bring him into contact with children.

10 The Applicant's wife runs a family daycare service from home. It is this work which alerted the Department's Screening Unit of the effect of the Act.

11 The Applicant has been married for many years. He has one older daughter born as a result of the relationship which resulted in the offence of carnal knowledge that brought the applicant under the statute. To the Applicant's credit, although he never married the child's mother he has maintained a relationship with his daughter. She has over the years stayed at her father's house and is known by all members of her father's family. The Applicant has two grown step children in their early twenties who he says are effectively his own. The Applicant has two sons to his wife. His wife was present in the court and gave evidence on his behalf.

12 For the last four years the applicant has been President of the local junior football club. It was clear from the evidence that this was a predominantly administrative role however on occasions he coached when no one else is available. His youngest child plays for the club.

13 The applicant's wife Mrs AR gave evidence at the hearing. She appeared an honest reliable witness who supported her husband in this application. She has been a `daycare' mother for many years and currently has up to five preschool children in her home. The hours of her daycare facility which she runs from her home are 5.30 am to 5.30 pm 5 days a week. Evidence was given that she is responsible for the children. The applicant, who works shift work has very little to do with the children. The usual yearly police checks and the more regular department checks are carried out on both people. It is noteworthy that Mrs AR's reputation is of sufficient strength for the Department to allow her to continue her day care pending the outcome of this application.

14 The Tribunal found the Applicant to be an honest witness. He acknowledged that his activities as a young person were wrong. The last entry on his criminal record was on 15 April 1982. Although this charged did not of itself bring the applicant under this Act the Commissioner correctly explored the situation in cross examination to ensure this did not reflect on whether the Applicant posed a risk to children., The Applicant was 22 at the time of this incident. He satisfied the Tribunal that although he had no real explanation for this extraordinary behaviour, he would never repeat it and admitted it was quite inappropriate.

15 At the end of the evidence the Commissioner did not oppose the application and did not seek any conditions.

16 The tribunal finds the Applicant poses no risk to the safety of children. In making this finding the Tribunal has applied each of the factors required by s9(5) of the Act as mentioned above in paragraph 7.

17 The Tribunal makes the following orders:

1 An order declaring that the Child Protection (Prohibited Employment) Act 1998 does not apply to Mr AR in respect of the offence of carnal knowledge of which he was convicted 24 May 1976. This order is not subject to any conditions.

2 Pursuant to s9(10) the Tribunal will notify the Commissioner of Police and the Screening Unit of the Department of Community Services of the terms of these orders.