AZ v Commission for Children & Young People [2003] NSWADT 69 (7 April 2003)

Last Updated: 13 June 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: AZ -v- Commission for Children & Young People [2003] NSWADT 69

PARTIES: APPLICANT

AZ

RESPONDENT

Commission for Children & Young People

FILE NUMBERS: 024002

HEARING DATES: 18/02/03

SUBMISSIONS CLOSED: 18/02/2003

DECISION DATE: 07/04/2003

BEFORE: Gelin B - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Child Protection (Prohibited Employment) Act 1998

Crimes Act 1900

CASES CITED:

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

R McIlwaine, Solicitor

ORDERS: Orders made on 18 February 2003.

1. Application dismissed.

2. The applicant is not entitled to make a further application for an order under the Child Protection (Prohibited Employment) Act 1998 until 18 August 2005 in respect of the offence(s) of Sexual assault for which he was found guilty on 26 February 1991 at Worimi Children's Court.

Reasons for Decision:

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

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(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.

REASONS FOR DECISION

1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the Act) is not to apply to Mr AZ in respect of the offence of sexual assault which occurred in December 1990 and for which he was convicted in New South Wales on 26 February 1991. The hearing of the application for a declaration was conducted on 18 February 2003.

2 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)).

3 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 AZ". The official copy of the orders provided to the parties includes the name of the applicant.

4 Mr AZ is applying for a declaration that the Act does not apply to him, because he wants to continue or resume a career as a youth worker.

LEGISLATIVE PROVISIONS

5 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.

6 Subject to certain defences and transitional provisions, the 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.

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...

(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.

8 "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

(b1) an offence under section 80D or 80E of the Crimes Act 1900, where the person against

whom the offence is committed is a child, 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

regulations.

(4) An offence that was a serious sex offence at the time of its commission is not 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.

9 Section 9 of the Act allows the Tribunal to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that section 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,

(a1) the period of time since those offences were committed,

(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,

(d1) the prohibited person's present age,

(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 or 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

10 There are two questions to be answered before the Tribunal can determine whether a declaration should be granted. These questions are:

(a) Is Mr AZ a prohibited person within the meaning of that term in s 5 of the Act?

(b) Does Mr AZ pose a risk to the safety of children taking into account the provisions of s 9(5) of the

Act?

EVIDENCE

11 The documentary evidence in this matter consists of

(a) Mr AZ's application to the tribunal;

(b) A bundle of documents provided by the respondent relating to Mr AZ's conviction and criminal record

(Exhibit 1);

(c) Reports of Dr Christopher J Lennings, 3.4.02 and 15.11.02, and of Dr Anthony Nicholas, 5.9.02

(Exhibit 2);

(d) Additional bundle of documents provided by the respondent, including Apprehended Violence Order

issued 3.4.00; a statement by the person in need of protection; a letter from Mr AZ to the Director

General, Department of Juvenile Justice, 13.12.01 (Exhibit 3).

12 It is common ground that Mr AZ is a prohibited person under the Act. The offence of sexual assault (Section 61E(1) of the Crimes Act) with act of indecency for which he was convicted at Worimi Children's Court on 26.2.91 consisted of Mr AZ asking the victim out of a residence, then grabbing her, pulling her around the corner of the house, attempting to force her right hand down the front of his trousers, rubbing her breasts with his hands. It is a serious sexual offence. Mr AZ was 17 at the this offence was committed, December 1990; the victim was 15.

13 Mr AZ had a previous conviction, in 1990, for offensive conduct, and some subsequent convictions: low range PCA in May 1991, high range PCA in October 1991, and contravene AVO in January 2001. There were two reports to police of AZ assaulting females. Mr AZ had a history of drug and alcohol abuse, and the consumption of alcohol is an ingredient of his conduct in each of the aforementioned offences.

14 In his testimony, Mr AZ acknowledged responsibility and expressed deep regrets for his past conduct. He feels, however, that he is now a different person from the youth who abused amphetamines and lacked self-control. A radical change occurred in his life in 1993, when he underwent rehabilitation with the William Booth community. He became a youth worker. He feels that, given his life experiences and his new attitude, and notwithstanding his lack of formal qualifications, he has much to offer to young people in such capacity.

15 In relation to his contravention of the AVO, he explained that his former wife (the person in need of protection) had obtained such order by false pretences, and he was being deprived of access to his two boys by her. He breached the AVO in order to see his children. He was affected by alcohol at the time. The wife's testimony, which had led to the making of the apprehended violence orders, was that Mr AZ had punched and slapped her and pulled her hair. Mr AZ does not accept that such testimony is true.

16 Nor does Mr AZ accept that his continuing consumption of alcohol has a negative effect on his behaviour. However, he does accept that he has a problem with controlling his anger. When first assessed by Dr C Lennings, in April 2002, he took note of this psychologist's recommendation that he undergo counselling. Mr AZ availed himself of the services of another psychologist, Dr Anthony Nicholas, whose report is indeed quite positive about the use made and benefits derived by Mr AZ from such counselling. However, the recommended course of counselling was of not less than ten sessions, and Mr AZ only attended four - none since October 2002. Even Dr Nicholas' rather positive report is guarded as to Mr AZ's likelihood of being a risk to children. In his report, he states that "opportunity should not be provided for him in the short term to work alone with young people in crisis, for example, being a sole worker on night duty in a youth hostel".

17 Mr AZ has been for the past eighteen months in a stable relationship, and his partner is pregnant with his child. Mr AZ submitted that this is also part of his commitment to and incentive for a responsible behaviour pattern in the future.

REASONS FOR DECISION

18 This Tribunal is required to take into account the factors or matters enumerated in s 9(5) of the Act:

(a) The offence for which Mr AZ was convicted is clearly a serious one. The young victim was not in any

way consenting to, or inducing, the assault, and there was an element of premeditated stalking in this

offence.

(a1) Some twelve years have elapsed since the commission of that offence.

(b), (c), and (d) Mr AZ was 17 and the victim 15.

(d1) Mr AZ is now 29.

(e) This is of much concern. While there is only one conviction for a serious sexual offence, Mr AZ's

pattern of behaviour and other convictions indicate a clear deficit in anger control, and continuing abuse of

alcohol which is a factor in each of those incidents. The offence of contravening an AVO is fairly recent

and is regarded as extremely serious in this respect.

(f) Mr AZ does show remorse, and indicates some insight into his problems. There is some good

possibility that, with further counselling, and abstention from alcohol, he might overcome those problems.

Both psychologists' reports indicate that the appellant poses some degree of risk to the safety of children.

19 Section 9(4) of the Act does not allow this Tribunal to grant the declaration sought by the Applicant unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. I am unable, on the basis of all the evidence and submissions presented in these proceedings, to come to the view, or belief, that Mr AZ does not presently pose such risk. I must therefore decline the application. However, inasmuch as there is hope that, with counselling and other supports, Mr AZ may achieve rehabilitation, I have decided to shorten the period he will need to wait before making a fresh application to this Tribunal

ORDER

1. The Application is dismissed.

2. The applicant is not entitled to make a further application for an order under the Child Protection (Prohibited Employment) Act 1998 until 18 August 2005 in respect of the offence(s) of Sexual assault for which he was found guilty on 26 February 1991 at Worimi Children's Court.