TZ v Commission for Children and Young People [2006] NSWADT 229 (2 August 2006)

Last Updated: 2 August 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: TZ v Commission for Children and Young People [2006] NSWADT 229


PARTIES: APPLICANT
TZ
RESPONDENT
Commission for Children and Young People



FILE NUMBERS: 054055

HEARING DATES: 27/03/2006

SUBMISSIONS CLOSED: 27/03/2006



DECISION DATE: 02/08/2006

BEFORE: Britton A - Judicial Member





LEGISLATION CITED: Child Protection (Offenders Registration) Act 2000
Child Protection (Prohibited Employment) Act 1998
Commission for Children and Young People Act 1998
Interpretation Act 1987
Ombudsman Amendment (Child Protection and Community Services Act) 1998

CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949
R v Commission for Children and Young People [2002] NSWIR Comm 101
The Commissioner for Children and Young People v IK and Anor [2005]

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
C Pieris, agent

RESPONDENT REPRESENTATIVE: RESPONDENT
M England, barrister

ORDERS: It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to TZ in respect of four counts of attempted rape and five counts of rape for which he was convicted in the Melbourne County Court on 23 March 1974


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,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(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 The Applicant is a "prohibited person" and seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (‘Child Protection Act’). In March of this year orders were made under s 9(6) staying the operation of the Act until the matter was finally determined. That order was made subject to the condition that the Applicant not work other than as a labourer for his current employer. That work is "child-related employment" because a significant proportion is carried out within school grounds and is unsupervised. The issue that now falls to be determined is what final orders ought be made. This turns on the scope of s 9(4) of the Child Protection Act.

2 While the Respondent does not oppose the granting of a final order it submits that any further order made should reflect the terms of the stay orders. The Respondent concedes that the Applicant does not pose a risk to the sexual safety of children but argues that there is a risk that he might behave in a violent manner towards them. The Respondent contends that "safety" in the context s 9(4) must be construed so as to include safety from any physical harm including harm of a non-sexual nature. The Respondent argues that as a matter of statutory construction there is no warrant to read s 9(4) down to mean only risk of harm from sexual offending because the legislation is protective in nature and therefore ought be construed in such a way as to achieve the purpose of protecting children from risk of physical harm.

3 It is for this reason that the Respondent opposes the making of an order under s 9(1) of the Child Protection Act unless subject to appropriate conditions.

4 The Respondent raises a novel question. Up to now, these kinds of matters have generally been resolved by a consideration of the degree of risk that an applicant may pose to children, it being implicitly understood by all parties and the Tribunal that the type of risk to be assessed is one of sexual harm. If the Respondent’s position is accepted the type of risk is also one of critical importance. It argues, in effect, that once a person is convicted of a relevant offence (almost always a sexual offence), the Tribunal must then consider all the other types of risk he or she may pose to children and be satisfied that there is no material risk of those types of harm before it can make an order under s 9(1).

5 The Applicant submits, in effect, that the legislation ought not be read in the vastly expanded way for which the Respondent contends and that the concept of "safety" in the legislation was meant to relate chiefly to safety from sexual abuse and harm.

6 Statutory interpretation starts with the rule that words in a statute will ordinarily be construed according to their ordinary meanings but if, as is the case here, the words themselves contain a latent ambiguity, it is necessary to apply other rules, in particular to look to the legislature’s purposes in enacting the statute in question.

7 Before I proceed to deal with that issue, however, it should be noted that in these reasons, because of the sensitivity of this matter, I have decided not to provide any details that could identify the Applicant or anyone referred to in the proceedings other than the experts. The Applicant is referred to in these reasons by the pseudonym, ‘TZ’.

Scheme of the Child Protection Act

8 The long title of this 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".

9 The Act makes it an offence for a "prohibited person" to apply for, undertake or remain in child-related employment: s 6. A "prohibited person" is defined to mean a person convicted of a "serious sex offence" ... or a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000. A person is not a "prohibited person" if an order in force under ss 8A or 9 declares that the Act is not to apply to them: s 5(2).

10 "Serious sex offence" is defined by s 5(3) to mean:

(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 91H, 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

(d1) an offence an element of which is an intention to commit an offence referred to in paragraph (a), (b) or (d), 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.

11 Section 9(1) of the Child Protection Act provides:

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 order.

12 Section 9(4) of that Act provides:

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.

Scheme of the Offenders Registration Act

13 The Child Protection (Offenders Registration) Act 2000 (the Offenders Registration Act) defines a "registrable person" to mean:

(1) a person whom a court has at any time (whether before, on or after the commencement of this section) sentenced in respect of a registrable offence, and includes a corresponding registrable person.

(2) unless a person is a corresponding registrable person, a person is not a registrable person merely because the person:

(a) is a person in respect of whom a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 or section 33 (1) (a) of the Children (Criminal Proceedings) Act 1987 (or an equivalent order under the laws of a foreign jurisdiction) in respect of a Class 1 or Class 2 offence, or

(b) is a person on whom a sentence has been imposed in respect of a single Class 2 offence, if the sentence did not include:

(i) a term of imprisonment, including a term of imprisonment the subject of a periodic detention order or home detention order, or an equivalent order under the laws of a foreign jurisdiction, or

(ii) a requirement that the person be under the supervision of a supervising authority or any other person or body, or

(c) as a child committed:

(i) a single offence involving an act of indecency, or

(ii) a single offence under section 578B or 578C (2A) of the Crimes Act 1900 or an offence of possessing or publishing child pornography (in whatever terms expressed) under the laws of a foreign jurisdiction, or

(iii) a single offence under section 21G (1) of the Summary Offences Act 1988, or

(iv) a single offence (including an offence committed under the laws of a foreign jurisdiction) that falls within a class of offence the regulations prescribe for the purposes of this subparagraph, or

(v) a single offence an element of which is an intention to commit an offence of a kind listed in this paragraph, or

(vi) a single offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this paragraph, or

(d) is a person whom a court has found guilty of a registrable offence before 15 October 2001, unless the person is an existing controlled person.

(3) A person is not a registrable person if the person is receiving protection under a foreign witness protection law specified by the regulations for the purposes of this subsection, or has the same status as such a person under an order made under a corresponding Act specified by the regulations for the purposes of this section.

(4) For the purposes of this section, it is irrelevant whether or not a person may lodge, or has lodged, an appeal in respect of a finding of guilt, sentence or child protection registration order.

(5) A reference to a single offence in this section includes a reference to more than one offence of the same kind arising from the same incident.

14 A "registrable offence" is defined to mean:

(a) a Class 1 offence, or

(b) a Class 2 offence, or

(c) an offence that results in the making of a child protection registration order.

15 A Class 1 offence means:

(a) the offence of murder, where the person murdered is a child, or

(b) an offence that involves sexual intercourse with a child (other than an offence that is a Class 2 offence), or

(c) an offence against section 66EA of the Crimes Act 1900 ["persistent sexual abuse of child"], or

(d) an offence against section 50BA or 50BB of the Crimes Act 1914 of the Commonwealth ["sexual intercourse with child outside Australia"’ "inducing sexual intercourse with child outside Australia"], or

(e) any offence under a law of a foreign jurisdiction that, if it had been committed in New South Wales, would have constituted an offence of a kind listed in this definition, or

(f) an offence under a law of a foreign jurisdiction that the regulations state is a Class 1 offence, or

(g) an offence an element of which is an intention to commit an offence of a kind listed in this definition, or

(h) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this definition, or

(i) an offence that, at the time it was committed:

(i) was a Class 1 offence for the purposes of this Act, or

(ii) in the case of an offence occurring before the commencement of this definition, was an offence of a kind listed in this definition.

16 A Class 2 offence means:

(a) an offence that involves an act of indecency against or in respect of a child, being an offence that is punishable by imprisonment for 12 months or more [see ss.61L-61P Crimes Act 1900: "indecent assault"; "aggravated indecent assault"; "act of indecency"; "aggravated act of indecency"; attempts to commit such offences], or

(b) an offence under section 86 of the Crimes Act 1900 [kidnapping], where the person against whom the offence is committed is a child, except where the person found guilty of the offence was, when the offence was committed or at some earlier time, a parent or carer of the child, or

(c) an offence under section 80D or 80E of the Crimes Act 1900 ["causing sexual servitude"; "conducting a business involving sexual servitude"], where the person against whom the offence is committed is a child, or

(d) an offence under section 91D–91G of the Crimes Act 1900 (other than an offence committed by a child prostitute)[these offences relate to procuring, promoting, benefiting from, using premises for child prostitution or child pornography], or

(e) an offence under section 578B or 578C (2A) of the Crimes Act 1900 [now repealed], or

(f) an offence under section 21G (1) of the Summary Offences Act 1988 ["filming for indecent purposes"], where the person who was being filmed as referred to in that subsection was then a child, or

(g) an offence against section 50BC, 50BD, 50DA or 50DB of the Crimes Act 1914 of the Commonwealth [these offences relate to sexual offences against children outside Australia], or

(h) an offence against section 270.6 or 270.7 of the Criminal Code of the Commonwealth where the person against whom the offence is committed is a child [these offences relate to sexual servitude and deceptive recruitment of persons into sexual servitude], or

(i) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or of child abuse material [these offences relate to the importation of prohibited imports], or

(j) any offence under a law of a foreign jurisdiction that, if it had been committed in New South Wales, would have constituted an offence of a kind listed in this definition, or

(k) an offence under a law of a foreign jurisdiction that the regulations state is a Class 2 offence, or

(l) an offence an element of which is an intention to commit an offence of a kind listed in this definition, or

(m) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this definition, or

(n) an offence that, at the time it was committed:

(i) was a Class 2 offence for the purposes of this Act, or

(ii) in the case of an offence occurring before the commencement of this definition, was an offence of a kind listed in this definition.

17 An examination of the list of offences which constitute a "serious sex offence" for the purposes of s 5(3) of the Child Protection Act, reveals, as the term unsurprisingly implies, that all have a sexual component. Subject to the following exceptions this is also the case for those offences that constitute a "registrable offence" under the Offenders Registration Act.

18 The first exception is the Class I offence of murder, where the person murdered is a child. The second is kidnapping. The third is that set out in s 3D of the Act which gives the Court a discretion to order that a person comply with the reporting obligations of the Act, where that person is found guilty of an offence that is not a Class 1 or Class 2 offence.

19 Section 3D(2) provides that the court may only make the order if it is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children generally. Section 3D (7) provides that for the purposes of this section, a person poses a risk to the lives or sexual safety of one or more children, or children generally if there is a risk that the person will engage in conduct that may constitute a Class 1 or Class 2 offence against or in respect of a child or children. It is so closely related to Classes 1 and 2 as not in real terms to constitute an exception to them.

Parliament: Second reading speech

20 The Child Protection Act was enacted at the same time as two other bills which became the Commission for Children and Young People Act 1998 and the Ombudsman Amendment (Child Protection and Community Services) Act 1998. The Minister observed in moving the second reading of the bills (Hansard, Legislative Assembly, 21 October 1998, p 8739), that the bills "responded to key recommendations of the Wood Royal Commission paedophile inquiry". She went on to explain (at p 8742):

The Child Protection (Prohibited Employment) Bill (No 3) will implement recommendation 139 of the Wood Royal commission. Consultation on the bill has been extensive. The object of the bill is to prohibit persons with convictions for serious sexual offences from working in positions of child-related employment. Its provisions form an integral part of the employment screening system, that are low cost and are easily undertaken by employers. Under the bill, all current and prospective employees will be asked to declare whether they have any convictions for a serious sex offence. If they do, they will be prohibited from applying for, or continuing to work in, positions involving direct unsupervised contact with children. Sexual offences that have been decriminalised, and offences that fall within the category of "act of decency" but are not of a sexual nature, are not caught by the provisions of the bill. There will be a public education campaign when the bill is proclaimed to assist employers and employees become aware of their new responsibilities...

Together, these three bills represent a major step forward for the advancement of children's interests and their protection from harm. Acting on the recommendations of the royal commission gives us the chance to ensure the best possible protection for our children. The proposals I have outlined today have been refined through extensive consultation with all interested stakeholders. The Government believes that the best possible response has been made to the original recommendations of the Wood Royal Commission and to the range of issues raised in subsequent consultations.

Interpretation of section 9(4)

21 Section 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949 and Haylen J in R v Commission for Children and Young People [2002] NSWIR Comm 101. Their Honours focussed on the issue of the degree of risk. Young J said at [42] that "risk" in the context of s 9(4) meant "[a] real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child". That test was followed in The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136 at [13]). It is binding on this Tribunal.

22 To my knowledge the Supreme Court has not expressly considered what is meant by the words "safety of children" in the context of s 9(4).

23 The "golden rule" of statutory construction is that words in a statute will ordinarily be interpreted according to their ordinary meaning.

24 The usual way of determining the ordinary meaning of a word is to refer to an authoritative dictionary. In Australia, the dictionaries most frequently referred to, it seems, are the Macquarie and the Oxford Dictionaries.

25 The Oxford English Dictionary, Second Edition, 1989 defines "safety" as "The state of being safe; exemption from hurt or injury; freedom from danger". It defines "hurt" as "Injury of any kind inflicted or suffered; harm, wrong, damage, detriment". This however does not suffice to conclude the argument raised by the Respondent.

26 Where the meaning of a word is "ambiguous or obscure" it is appropriate to apply the provisions of ss 33 and 34 of the Interpretation Act 1987. Section 33 provides that a construction consistent with the objects of the legislation shall be preferred where there is any ambiguity. Section 34 provides that recourse may be had to secondary sources to construe a provision which is ambiguous or obscure. Among the materials that may be considered are the Second Reading Speech, Explanatory Memorandum and any relevant reports of the Law Reform Commission or committees of inquiry. Before considering this extrinsic material it is necessary to examine the scheme of the Act.

27 The types of offences that bring a person within the purview of the Child Protection Act provide useful guidance as to the scope of s 9(4). Prior to the 2001 amendments to the Child Protection Act a prohibited person was defined to mean a person convicted of a "serious sex offence" as defined by that Act. The Offenders Registration Act, Schedule 1, clause 1 extended that definition to include a "registrable person".

28 In addition to offences with a sexual component Parliament made specific provision in respect of other types of "offences against the person" (to use the generic form) only in respect of murder and kidnapping of children (it no doubt having in mind that kidnapped children are in peril of their lives). It covered all other eventualities in respect of offenders not caught directly under the very wide umbrella of Classes 1 and 2 of the Act by enacting s 3D of the Offenders Registration Act which, in effect, places a convicted offender in Class 1 or 2 for the purposes of registration if he or she "poses a risk to the lives or sexual safety of one or more children, or of children generally". Section 3D(7) provides that for the purposes of this section, a person poses a risk to the lives or sexual safety of one or more children, or children generally if there is a risk that the person will engage in conduct that may constitute a Class 1 or Class 2 offence against or in respect of a child or children. Because it enables a court effectively to declare a convicted offender is at risk of committing a Class 1 or 2 offence, s 3D(7) is not a separate exception but an echo of the first two exceptions to the general rule.

29 Thus threats or risks to life itself or sexual safety were established as the triggers for the imposition of the burden of registration under the Act.

30 Read together the with the long title of the Act and the record of the parliamentary debate, the definition of "prohibited person" in my view provides useful guidance of the type of harm or danger to children from which the Parliament intended this legislation to provide a protective shield. It is against those types of harm that the degree of risk posed by the Applicant is to be assessed.

31 It is easy to understand the concerns of the Respondent but to accept its construction of the legislation would, in my view, go far beyond the intentions of Parliament. Is the Respondent to be understood to argue, for example, that persons who negligently expose children to poor food handling practices or buy them foods that are likely to make them obese, or child carers who have poor driving skills or are not diligent in applying sunscreen are to swept under the protective umbrella of the Offenders Registration Act? It seems unlikely that the Respondent argues for a virtually limitless extension yet where does it draw the line? Taken to its logical extension, however, if the Respondent’s submission is correct, and unlikely as it may seem, there is no reason why such persons might not find themselves caught in the statutory web.

32 To construe the legislation according to the purpose of the legislature, the more correct approach, in my view, is to adopt and apply the language of s 3D(7): the conduct caught by s 9(4) when assessing the safety of children is that which "poses a risk to the lives or sexual safety of children". If that analysis is correct, when applying the test in s 9(4) the Tribunal will consider not the vast range of possible physical harms that adults may inflict on children but the limited range of risks posed by an applicant in respect of possible sexual harm to children or danger to their lives.

Merits of Application

(i) Section 9(5) factors

33 In 1975 the Applicant was convicted of four counts of attempt rape and five counts of rape. At the time of the offences he was intoxicated and in the company of 15 year old boy and a 39 year old man. He served a three-year custodial sentence. Both the Applicant and his victim were 16 years of age.

34 It is now 32 years since these offences were committed. The Applicant is now 49 years of age.

35 A copy of the Applicant’s criminal record was tendered in these proceedings. It includes convictions for a number of offences in addition to the index offences. In mid-2002 he pleaded guilty to charges of contravention of an apprehended domestic violence order, common assault, resist officer in execution of duties and assault officer in execution of duty. The facts sheet relating to that conviction was tendered in these proceedings discloses that the Applicant had yelled abuse at his family, thrown furniture over the balcony, grabbed his wife by the throat and pushed her against the wall and threatened her adult son with a knife. Three children including the Applicant’s 24-day-old son were present throughout this incident.

(ii) Expert evidence

36 The Applicant was seen by psychologist, Dr Christopher Lennings at the request of the Respondent. Three reports prepared by Dr Lennings dated 10 February 2006, 16 February 2006 and 6 March 2006 were tendered in these proceedings.

37 Dr Lennings concluded that the Applicant did not represent more than a moderate low risk of sexual recidivism but expressed concern with what he saw as the Applicant’s potential for violent behaviour. Dr Lennings pointed out that this behaviour was strongly "situationally focussed", namely associated with the use of alcohol in the context of a volatile or difficult relationship with another adult. He observed that there was no report of the Applicant using alcohol at work or engaging in violence or any other inappropriate conduct at work.

38 In his first report Dr Lennings stated that he did not think there was any appreciable risk of the Applicant engaging in violent conduct towards children in the school environment. (The Applicant worked in the building industry and has often worked at schools.) He went on to state that he thought it prudent that the Applicant abstain from alcohol at work. Dr Lennings also recommended that he resume formal drug and alcohol counselling.

39 In a supplementary report, Dr Lennings clarified a number of issues raised by the Respondent. He stated that he was of the opinion that it was unlikely that any violent behaviour by the Applicant would "leak out" to the employment environment. He explained that that opinion was based on the absence of any significant record of violence outside of relationship violence (other than the rape in 1975) and the fact that the Applicant abstained from drinking at work.

40 He went on to state that while he had no reason to believe that the Applicant might drink at work, even if he did, he thought this would not cause any problems as the Applicant was a reactive, not, a violent person and would need the provocation of a relationship to excite his violent side. Dr Lennings explained that the recommendation that the Applicant not drink at work, contained in his first report, was in the form of a caution designed to encourage the Applicant to maintain his habit of day-to-day sobriety.

41 Dr Lennings thought that the risk that the Applicant would "act out in any way" against a child or young people to be "very low".

(iii) History of Drug and Alcohol Abuse

42 The Applicant has a long history of drug and heavy alcohol use.

43 His evidence in these proceedings was to the effect that he no longer indulges in binge drinking and has significantly reduced his alcohol consumption. He claimed that he did not drink at all when he had the care of his son which he shared with his estranged wife. At the hearing he announced that he intended to follow Dr Lennings’ recommendation and recommence drug and alcohol counselling and, to this end, had started to see a counsellor.

44 There is no history of the Applicant drinking while at work. The Applicant’s employer gave evidence in these proceedings and confirmed the Applicant’s claim that he was always sober at work.

45 A large number of the offences for which the Applicant was convicted were carried out while he was intoxicated.

(iv) Character Evidence

46 Tendered in these proceedings were a number of character references provided for the Applicant.

47 A Catholic priest who had known the Applicant for about two years believed him to be a diligent and honest employee. He stated that he had observed the Applicant care for his son and believed him to be an excellent father.

48 The Applicant’s employer and his direct supervisor also provided references. Both spoke of the Applicant’s diligence and integrity. The supervisor commented that a number of clients had complimented the Applicant on his behaviour and excellent manners, especially around women and children.

Findings and Conclusions

49 The key issue to be determined is whether the Applicant poses a real and material risk to children and, if so, whether that risk can be reduced to one of no material significance by the imposition of appropriate conditions. The Applicant bears the onus of demonstrating that he poses no material risk to children.

50 The Respondent contends that the Applicant poses a real risk to the safety of children. Among other things it points to the long history of alcohol abuse and the troubling circumstances surrounding his conviction in 2002.

51 It is unquestionable that the 2002 incident is a most serious one. It is apparent from the description of the incident set out in the documents tendered by the Respondent that in a drunken state the Applicant put at risk the physical safety of his family including three young children.

52 The evidence indicates that there are some early positive signs that the Applicant is working to control his use of alcohol. His self-report is that he now has his drinking under control and is committed to this continuing. While he is to be commended for his efforts to date it is too early to tell whether he will be able to sustain this effort.

53 In my view it is not possible at this stage to exclude the possibility that despite the real progress the Applicant has made in recent years to address the issues which have caused him to act in a violent manner in the past (see Dr Lennings report of 10 February 2006) that, conduct of this type might be repeated. I do not think however that it follows that he poses a risk to the lives of children.

54 In summary I am satisfied that the Applicant does not pose a risk to the sexual safety or lives of children for these reasons. First, while serious in nature the index offences occurred over three decades ago and there has been no repeat of any sexual offending; second, while the victim of these offences was a child so too was the Applicant at the time; third, as the history taken by Dr Lennings reveals the Applicant has had a number of relationships with mature adult women and there is no evidence of him having any prurient interests in persons under the age of 18; fourth, while the Applicant has a criminal record of some length taken as a whole it does not show a pattern of sexual re offending or other inappropriate conduct towards children; fifth, while the circumstances surrounding the Applicant’s contravention of the AVO show that he acted in a manner that put a child at risk of physical and emotional harm there is no evidence to indicate that he has put the life of a child, related or otherwise, at risk; sixth, while not determinative the Applicant’s self report and the character evidence tendered in these proceedings support a finding that he is making real efforts to reform.

55 For these reasons I grant the application sought without conditions.

Orders

It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to TZ in respect of four counts of attempted rape and five counts of rape for which he was convicted in the Melbourne County Court on 23 March 1974.