Gvj&h [2001] NSWIRComm 69 (11 April 2001)

Last Updated: 9 May 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : GvJ&H [2001] NSWIRComm 69

FILE NUMBER(S): IRC5987

HEARING DATE(S): 01/02/2002, 09/02/2001

DECISION DATE: 11/04/2001

PARTIES:

APPLICANT:

G

FIRST RESPONDENT:

J

SECOND RESPONDENT:

H

JUDGMENT OF: Kavanagh J

LEGAL REPRESENTATIVES

APPLICANT:

Mr G. Brady of counsel

Solicitors:

D.G. Skinner & Associates

FIRST RESPONDENT:

Mr P.F. Singleton of counsel

SECOND RESPONDENT:

Ms S.C. Dowling of counsel

CASES CITED: A and The Commission for Children and Young People (No 2) [2000] NSWIRComm 219

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998

Commission for Children &Young People Act 1998

Criminal Records Act 1991

JUDGMENT:

- 30 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: KAVANAGH J

Date: Wed 11 April 2001

IRC5987 of 2000

G v J & H

DECISION

1    This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the Child Protection Act) is not to apply to the applicant in respect of an offence, for which he was convicted, of indecent assault of an eight year old child on 9 September 1961.

2    The Child Protection Act had legal effect from 3 July 2000. The Act makes it an offence for a person, who has been convicted of a serious sex offence, to apply for, undertake, or remain in child-related employment. It is also an offence for an employer to commence employing, or to continue to employ, such a person in child-related employment.

3    Under s9(6) of the Child Protection Act, the Commission on 15 December 2000, by consent, stayed the operation of a prohibition under the Child Protection Act pending further determination by the Commission: see A and The Commission for Children and Young People (No 2) [2000] NSWIRComm 219 [at 28&29] for consideration of the issues to be addressed in the granting of a stay application.

4    A suppression order as to the identification of the parties was also granted by consent. After access was granted to relevant documents and more detailed affidavits were filed, both respondents reviewed their attitude to the application. The hearing was conducted on 1 and 9 February 2001. The first respondent, a government authority, neither supports nor opposes the making of the orders sought but provided great assistance to the Commission as to the proper application of legislation which has only come under review recently. The second respondent, the employer, opposes the making of the order sought.

History

5    The applicant at the time of the offence was a 16 year old minor. The offence was committed 39 years ago. The applicant was convicted in the Children's Court on 7 February 1962 of "indecent assault on an eight year old child". The penalty imposed was:

committed to an institution with an order being suspended on his entering into a recognisance and his sentence was then suspended with $30 to be of good behaviour for 24 months and to receive sex instruction from a priest as and when required.

6    Since the NSW Government introduced this legislation, which research reveals is unique in its ambit, obligations have fallen upon employees to reveal matters related to prior sexual offences. Employers, if the employment is child-related, that is, employment involving persons under 18 years of age, became obliged to screen all employees as to their criminal history for any sex related offences.

7    The second respondent, an employer, operates educational institutions throughout NSW. As some of its courses, it determined, could attract the enrolment of persons 15 years of age, the second respondent made a general determination that the services it provided could be identified as child-related employment.

8    The applicant had been working, on a part-time casual basis, with the second respondent. He conducted First Aid courses, or First Aid Examinations for the second respondent. He had been required to make a new application for employment following a change of procedures by the second respondent. On 5 October 1999, the applicant was selected for further employment with the second respondent as a part time, casual teacher. The applicant's name was placed on a suitability list and he was informed the list remained in force for a period of two years and would expire on 17 September 2001. He was engaged under this new employment arrangement to teach a number of First Aid courses with the second respondent. The bookings involved four days work in all.

9    On 9 October 1999 the applicant completed a "Consent to Employment Screening" document issued by the second respondent, his employer, in accordance with its obligations under the Child Protection Act. This form was drafted under the guidance of the first respondent in accordance with the provisions of the Child Protection Act. In signing the form the applicant acknowledged he understood:

. . . that the existence of convictions relating to sexual activity, acts of indecency, child abuse or child pornography will automatically prohibit my employment in child related positions and that relevant criminal records, Apprehended Violence Orders and completed relevant disciplinary proceedings which involve child abuse, sexual misconduct or acts of violence in the workplace may influence the decision to offer me child-related employment.

10    Arising from the consent form completed by the applicant, which acknowledged no conviction, the second respondent applied for and obtained from the New South Wales Police Service a copy of the applicant's criminal history. The criminal history document obtained from the Police Service of NSW revealed the conviction in 1961.

11    The applicant was contacted on 16 October 2000 and told he was a "prohibited person" under the Child Protection Act as he had a conviction recorded against him for a serious sex offence. There was an agreement to send to the applicant information about an application he could make for orders and an exemption under the Child Protection Act.

12    The applicant informed the first respondent he had part time work soon with the second respondent. On 17 October 2000 the particular institution from which he obtained the work was informed the applicant was a "prohibited person" under the Child Protection Act and he was working in what was identified as a "High Risk" position.

13    On 18 October 2000 the applicant was formally notified by letter that he was a "prohibited person" under the Child Protection Act.

14    The applicant after reading the promised explanatory documents, rang the second respondent on 23 October 2000 and asked was he being told he was a "prohibited person"? He was told he was but he could apply for a Stay of the Declaration and/or obtain an exemption under the Child Protection Act to continue to lecture by way of an application to this Commission or the Administrative Appeals Tribunal.

15    The applicant then sought independent legal advice. He was led to believe, in compliance with the Act, he could still carry out work in connection with young persons over 17 years of age. He was not told the second respondent had declared that some of its courses enrolled persons as young as 15 years old. The head teacher of First Aid arranged for the applicant to perform the work for which he was pre-booked not as an employee but as a contractor. However, the second respondent paid the applicant directly for the work performed between 27 and 29 November 2000. What the facts reveal is one division of the second respondent declared the applicant a "prohibited person" yet another declared he worked as an employee. Further one of the second respondent's head teachers took it upon himself to determine, after the applicant's notification he was a prohibited person, that the applicant could perform the work, if not as an employee, then as a contractor.

16    On 27 October 2000, solicitors for the applicant applied to the Police Service for his criminal history under the Freedom of Information Act, 1989. An application for a Stay of the Declaration and an application for a declaration that he was not a prohibited person was filed in the Industrial Relations Commission of NSW on 8 December 2000. In support of the application, on 5 December 2000, the applicant swore an affidavit. It was sworn three weeks after he/his solicitors had been forwarded a copy of his criminal record. In the affidavit the applicant stated his recollection was the girl against whom the offence occurred was aged "between 12 and 15 years". The criminal history sent to the applicant's solicitors prior to the affidavit being sworn states (although the photocopy is unclear) the girl was 8 years old.

17    The circumstances of the offence are three teenage boys, of whom the applicant was one, were in bushland shooting with a pellet gun at a plastic boat. They were discussing the female anatomy, expressing curiosity. A boy came along with a very young girl, his cousin. One of the teenagers, not the applicant, threatened the boy with the pellet gun and he ran off. The little girl was then placed up on a pipe by one of the boys. Each boy touched her in the vagina area. They were disturbed by her mother. The girl was terrified and crying. The evidence was she had her panties on. However this could never be called a minor offence. The facts reveal, and I find, this was a serious sexual offence.

18    The Magistrate, at the time, expressed the view, as the applicant came from a good home, his family and he were church goers, and there has been no prior allegations or convictions, the applicant and the other boys should be given another chance. To ensure they understood the seriousness of the offence he ordered the boys spend 14 days in custody in a correctional institution between the mention and hearing of the matter. The applicant gave evidence as to this experience. His recollection, now he is reminded of the events, is the time he spent in custody was the most "alien environment" he had ever encountered in his life.

19    The applicant's history over the following years is relevant. At the time of the offence as a young teenager he was employed as a clerk and printer's assistant at the Atomic Energy Commission at Lucas Heights. He worked there for seven years. He obtained employment as an assistant manager at a food store for two years and was subsequently employed as a bread run supervisor during which time he obtained a bus driver's licence. He began to carry out casual bus driving work to supplement his income from his permanent work. He has done casual bus driving work including driving a school bus since the age of 24, that is, for 30 years. He is still in employment as a part time bus driver including driving a school bus.

20    When he was aged 25 years the applicant joined the New South Wales Ambulance Service and he was employed by them for a period of 29 years.

21    The applicant's record of community service reveals, in July 1986, notwithstanding his juvenile conviction, he was appointed a Justice of the Peace and has been so for the last 15 years. He has been a member of various Lions Clubs and community groups. He has been chairman of some of these organisations. He has been a member of a NSW Hospital Board and was Chairman of same for four years. He has been in the Army Reserves for 26 years. He has been an instructor and Platoon Commander in the Australian Cadet Corps. In all these capacities he has had regular contact with children. He lives in a home in a country town with a partner and a 16 year old son whom he supports. His income pays off a mortgage and is used for living expenses. He is aged 56, with no record as to criminality and no evidence as to allegations of same for the last 39 years.

Legislative provisions

22    The Child Protection Act makes it an "offence" for a person convicted of a "serious sex offence" who is deemed to be a "prohibited person" applying for, undertaking or remaining in "child-related" employment. The "offence" is defined in s6(1):

6 OFFENCES RELATING TO PROHIBITED PERSONS

(1) Offence of applying for, undertaking or remaining in child-related employment

A prohibited person must not:

(a) apply for child-related employment, or

(b) undertake child-related employment, or

(c) remain in child-related employment.

. . .

(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.

. . .

23    "Serious sex offence" is defined in ss5(3),(4) and (5):

(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.

24    A "prohibited person" is defined in s5:

5 PROHIBITED PERSONS

(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.

25    "Child" and "Child-related employment" are defined in s3:

3 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.

26    "Employment" is defined in s3:

"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.

27    Subject to certain transitional provisions, the Child Protection Act also makes it an offence for an employer to do certain things including knowingly employing a prohibited person in child-related employment. The obligation of an employer is defined in s7(1) and s8(1) of the Child Protection Act:

7 EMPLOYER TO ASCERTAIN WHETHER EMPLOYEE IS PROHIBITED PERSON

(1) Offence of employing person in child-related employment without requiring disclosure

An employer must not commence employing any other person in child-related employment without first requiring that other person to disclose whether or not that other person is a prohibited person.

8 EMPLOYER NOT TO EMPLOY PROHIBITED PERSON IN CHILD-RELATED EMPLOYMENT

(1) Offence of employing prohibited person in child-related employment

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

28    The evidence revealed the role the first respondent played in the decision to declare a person a "prohibited person". The first respondent, an authority, guided the second respondent, an employer, as it developed procedures to meet its obligations under the Child Protection Act.

29    Another New South Wales Act becomes relevant, namely, the Commission for Children and Young People Act, 1998. It established the identity of the first respondent. That Act outlines the first respondent's powers and obligations. It also outlines the procedures that must be put in place by an employer such as the second respondent. Relevantly, under the heading "Employment Screening" this Act states:

31 Object of Part

The object of this Part is to protect children by means of employment screening for child-related employment administered by the Commission and other agencies.

32 Welfare of children to be paramount consideration

The welfare of children and, in particular, protecting them from child abuse, is the paramount consideration in employment screening.

. . .

30    It is of note that s32 states a different objective in the employment screening under the Commission for Children and Young People Act, 1998 from the purpose of the Child Protection Act which is "to prohibit the employment in child-related employment of persons found guilty of committing certain serious sex offences; and for related purposes".

31    Section 34 continues:

34 Nature of employment screening

For the purposes of this Part, employment screening is any or all of the following procedures with respect to a person who is employed or who has applied to be employed in child-related employment:

(a) a check for any relevant criminal record of the person, for any relevant apprehended violence orders made against the person or for any relevant disciplinary proceedings completed against the person,

(b) any other relevant probity check relating to the previous employment or other activities of the person,

(c) an assessment of the risk to children involved in that child-related employment arising from anything disclosed by such a check, having regard to all the circumstances of the case,

(d) the disclosure of the results of any such check or risk assessment to any person who determines whether the person is to be employed or continue to be employed in that child-related employment (or to a person who advises or makes recommendations on the matter).

. . .

37 Employment screening mandatory for preferred applicants for certain child-related employment

(1) This section applies to any decision by an employer to employ a person in primary child-related employment, being a person not already employed by the employer in child-related employment of that kind.

(2) It is the duty of an employer to carry out all the relevant procedures of employment screening of the preferred applicant before employing the preferred applicant in that child-related employment. . . .

The Minister then publishes guidelines related to the procedures and standards for employment screening.

32    The Child Protection Act also identifies it is an offence for a person who is in employment not to disclose, as well as an offence for an employer not to require (within 6 months) a disclosure from an employee:

7 EMPLOYER TO ASCERTAIN WHETHER EMPLOYEE IS PROHIBITED PERSON

. . .

(2) Transitional provision - offence not to require disclosures of existing employees in child-related employment

An employer who, at the commencement of this subsection, employs a person in child-related employment must, within 6 months of that commencement, require the employee to disclose whether or not the employee is a prohibited person unless the person ceases, during that 6-month period, to be engaged in that employment.

. . .

(4) Offence of failing to disclose

A person must disclose to the person's employer, within 1 month of receiving notice of a requirement under subsection (2) to do so, whether or not he or she is a prohibited person.

33    Therefore there is an obligation on a person who is employed to disclose to their employer if they are a "prohibited person" and there is an obligation for the employer to ascertain whether the employee is a "prohibited person".

34    The employer in the case before the Commission met its obligation. The applicant did not disclose his conviction.

The Powers of the Commission

35    The Commission is empowered to review the declaration that the applicant is a "prohibited person" under s9 of the Child Protection Act. Section 9 allows the Commission to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that section states:

9 IRC AND ADT MAY MAKE DECLARATIONS CONCERNING PROHIBITED PERSONS

(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.

. . .

36    The Parliament in this unique legislative Act has created a legal presumption that persons who have been found guilty of certain sex crimes, defined as "serious", against children, are not fit to be employed in child-related employment. However, that presumption can be rebutted upon the application for an order from the Commission declaring the person does not pose a risk to the safety of children (s9(4)). The Macquarie Dictionary 1991, 2nd Ed, defines "pose" as "an examination by putting a question"; defines "risk" as "an exposure to the chance of injury" or "a dangerous chance"; "safety" is defined as "freedom from injury or danger". The Commission must therefore examine and question whether the applicant in child-related employment gives to the children freedom from an exposure to the chance or dangerous chance of injury.

37    By virtue of s9(1) the effect of the Commission's order is not merely to allow a person to continue in particular employment: an order by the Commission attaches to a person in respect of a specified offence, not to particular work. An order of the Commission in effect allows that the person is forever exempt, in respect of the offence concerned, from the operation of the Child Protection Act. Therefore the Commission needs to be satisfied that the person is an appropriate person to engage in all child-related employment including the performance of work as a volunteer for an organisation. There is no onus to establish that the person will or could harm a child nor is it sufficient for the person to prove (or for the Commission to be satisfied) that the applicant probably would not harm any child. The Commission must be satisfied there is no risk posed to the safety of children if this person is employed in child-related employment (s9(4)).

38    The first respondent submits, if the Commission is satisfied the applicant does not pose a risk to the safety of children, the Commission then has a broad discretion as to the form and content of its orders. Under s9(1) the Commission has a discretion whether to make any orders. The Act states the Commission:

. . . may make an order declaring that this Act is not to apply to the person in respect of a specified offence.

(emphasis added)

Section 9(5) then enunciates a number of factors the Commission "is" to take into account:

9 IRC AND ADT MAY MAKE DECLARATIONS CONCERNING PROHIBITED PERSONS

. . .

(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) . . .

(8) . . .

(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) . . .

(emphasis added)

In accordance with the Act, the Commission is to take into account in determining that risk the specific criteria, namely, the seriousness of the offence; the age of the victim; the difference in age between the prohibited person and the victim; the prohibited person's criminal record and other relevant matters.

39    In A and The Commission for Children and Young People (No 2) [2000] NSWIRComm 219 (published 27 September 2000) Wright J, President [at 29] referred to the application of s9(4) as placing an obligation on this Commission to comply with the "mandate" in s9(4). Wright J, President observed s9(4):

29 . . . It is clear from both its terms and evident purpose that the test imposes an obligation to consider whether it is satisfied at the time the Commission is considering the application. Although past conduct may be relevant it is only relevant to the extent that it may assist that determination. Regard must also be paid to possible future conduct. . . .

30. In considering the application and scope of the statute the precise factual circumstances which will exist in all or the vast majority of cases must be considered. They include the fact that the applicant will have been convicted of one or more serious criminal offences and that he or she will have served any relevant sentence. The applicant will most likely have had no further convictions and not be the subject of further adverse notifications to the authorities. Accordingly, the fact alone of absence of further convictions and absence of further adverse notification to the authorities are not matters of themselves which will necessarily, or be likely to, lead to a grant of an order under s9.

31. Such considerations serve to show the broad public interest the legislation is intended to serve. It is not a statute intended to impose an additional punishment on a person guilty of a criminal offence of a sexual nature. Rather it is intended to provide a means to identify such offenders to the relevant authorities and, where relevant, their employers, and to eliminate to the greatest extent possible the risks that such persons might pose to children particularly from any institutional contact or relationship they might have with them. These considerations serve to emphasise the importance of the public interest considerations embodied in the terms and purposes of the legislation and the stringency of the approach to be taken by the Commission prior to making an order whether final or interlocutory.

40    The power of the Commission to make an order is therefore discretionary. The Commission, however, cannot make an order under s9 unless it is satisfied the applicant does not pose a risk to children (s9(4)) and the Commission is to have regard to the matters set out in s9(5). The burden of proof is carried by the applicant.

41    The Commission must first determine some preliminary issues, namely, whether:

1. (i) the applicant is an employee;

(ii) the applicant has been convicted of a serious

sex offence;

(iii) the applicant is a "prohibited person"

(iv) the applicant is an employee in "child-related"

employment.

2. The Commission must then, from the facts, taking into account the various indicia to which it is directed by s9(4), determine whether the applicant poses a risk to the safety of children.

3. The Commission has a discretion to make an, or any, order after it is satisfied the applicant poses no risk to the safety of children.

Consideration

42    In the consideration as to whether this applicant poses a risk to the safety of children, the Commission takes into account the following matters: the applicant was twice the age of the victim; he was 16 years of age at the time, had left school and was employed as a full time clerk (s9(5)(b)); the victim of the assault was aged 8 years (s9(5)(c)); the applicant was therefore old enough to understand an 8 year old child was not a proper target of sexual advances and to understand the seriousness of his actions (s9(5)(d); the applicant has no other convictions (s9(5)(e)). There can be no dispute the indecent assault of an 8 year old child, in the circumstances before the Commission, reveals a very serious offence (s9(5)(a)).

43    Section 9(5)(f) empowers the Commission to consider other relevant matters. The second respondent submits there are other relevant matters that the Commission should take into account.

44    The second respondent submits the Commission should have regard to the unsatisfactory nature of the evidence of the applicant and as well as his unsatisfactory conduct during the proceedings. The second respondent submits the applicant cannot be accepted by the Commission as a credible witness. In support of this proposition the second respondent relies on the following evidence: the applicant admitted he was aware at least after he obtained the screening document, that he had been convicted of a serious sex offence and was ineligible for child-related employment yet he continued to work; the applicant did not declare his conviction; the applicant originally stated the victim was 12 to 15 years old not the recorded 8 years of age. The second respondent submits the applicant's evidence, that he did not remember the circumstances of the conviction, is to be rejected. The second respondent submits at no time did the applicant attempt to correct the false evidence he swore as to the circumstances of the conviction contained in his first affidavit. The second respondent submits it was only under cross examination that the applicant conceded he had misled the Commission in his earlier evidence and such vital evidence as that the offence contained an element of violence and it was committed against a minor were only then revealed to the Commission.

45    The applicant also said, in his affidavit evidence, that there had been "no complaints" in relation to his conduct "with children or otherwise". Yet in cross examination, the second respondent submits the applicant conceded he was dismissed for failing to follow directions in relation to a complaint and investigation by the NSW Ambulance Service for allegations of sexual harassment and discrimination against a female employee for which he was dismissed by the Ambulance Service. This, the second respondent submits, is another complaint. Further, the second respondent submits, when the applicant worked for them over the four days in November he "sneakily" avoided the scrutiny of the employer by being employed as a contractor.

46    The second respondent submits the Commission is entitled and should draw an adverse inference as to the applicant's credit because of the affidavits sworn by the applicant in the proceedings. It submits he did not file any independent evidence of good character nor does he rely on any psychiatric evidence that may assist the Commission in determining whether he poses a risk to children. The second respondent asserts it was open to the applicant to adduce evidence from persons who have known him or worked with him and could depose to his good character. Similarly, evidence from an appropriately qualified expert as to the risk posed by the applicant would have assisted the Commission in making its determination.

47    Generally, the second respondent submits the Commission should find this man a liar or an avoider and a person not to be trusted with children, namely, a "prohibited person".

48    As to the applicant's affidavit evidence, in his affidavit filed in support of this application on 31 January 2001, the applicant said:

4. A. The copy of documents which was apparently delivered by the Attorney Generals Office . . . on the 18th January 2001 was not received by my Solicitor until 5.00 pm on the 29th January 2001 and was not available to me until the 30th January 2001.

B. Because of the shortness of time allowed to me to answer statements made I am not in a position to answer Statements contained in the history of the Court proceedings against me and others up to and including the 7th February 1962.

C. From those proceedings it appears that I appeared on at least three occasions. The position to the best of my recollection is that we regularly played in that particular area.

D. I remember being convicted for the indecent assault of a female but cannot recall the exact details of that assault. As previously stated the offence occurred almost 40 years ago. I had completely blocked it out of my mind as it was part of a very unhappy period of my life.

E. At the time I was very upset and could not understand my actions as are clearly shown by the report for the Children's Court. I was not an aggressive person I had done nothing wrong previously. There may well have been a gun there but I can't remember it and I did not at that time have a gun. I cannot recall touching the girl as stated but having read the report feel very sorry for the girl and was very sorry at the time for what we had done.

F. The matter was fully considered by the Magistrate as evidenced by the statements made by him and submissions made to him and by the psychiatrist report, the report from the Detention Centre and listing report.

G. Having considered all these matters and the fact that I had been detained for a fortnight to enable a report to be done the Magistrate decided to admit to an institution but to suspend that commission upon my entering into a bond to be of good behaviour for two years and accept guidance from the local priest. I complied with the bond and was never and have not been accused of or convicted of a criminal offence since that date.

49    I accept this affidavit does acknowledge the applicant's conviction and expresses the remorse of the applicant. The applicant gave evidence as to the circumstances under which he made the first declaration. He said at that time he did not recollect the conviction or its details saying:

I had actually blocked it out of my memory.

He gives an explanation for this blocking out, saying:

I was always led to believe that any Children's Court conviction ceased to exist once I complied with the requirements of the Children's Court. I believed the record would be destroyed and would no longer be taken into account and I would not be required to include such a conviction in my history, particularly having regard to the fact that it happened forty years before.

(Emphasis added)

One can be sympathetic to this attitude. The applicant has been sworn-in as a Justice of the Peace in NSW for the last 15 years. He has served as Chairman on a NSW Hospital Board. He has given other significant community service. His life experience led him to believe his juvenile criminal record had not been relevant to his advancement.

50    The effect of another legislative provision, namely, the Criminal Records Act 1991 therefore becomes relevant to these considerations. The Act limits the effect of a person's conviction for minor offences upon completion of a period of crime free behaviour. Many members of the public and persons with prior convictions mistakenly but genuinely believe, after a period of time, all convictions in juvenile matters are expunged. It is relevant to this inquiry to record the true effect of the Criminal Records Act 1991. Relevantly, the following provision must be considered.

51    Section 12 of the Criminal Records Act states:

12. If a conviction of a person is spent:

(a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction; and

(b) a question concerning the person's criminal history is taken to refer only to any convictions of the person which are not spent; and

(c) in the application to the person of a provision of an Act or statutory instrument:

(i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent; and

(ii) a reference in the provision to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.

Generally therefore a spent conviction need not be disclosed to any person, including in response to a question concerning a person's criminal history, nor is it to be taken into account where a person's character is assessed.

52    Further, s10 of the Criminal Records Act states:

What is the crime-free period for orders of the Children's Court?

10.(1) The crime-free period in the case of an order of the Children's Court under section 33 of the Children (Criminal Proceedings) Act 1987 (other than a finding or order referred to in section 8 (2) or (3) of this Act) in respect of a person is any period of not less than 3 consecutive years after the date of the order during which:

(a) the person has not been subject to a control order; and

(b) the person has not been convicted of an offence punishable by imprisonment; and

(c) the person has not been in prison because of a conviction for any offence and has not been unlawfully at large.

(2) The crime-free period may commence before the date of commencement of section 7.

So a conviction in the Children's Court becomes spent after the offender has been crime-free for three years.

53    However, s7 of the Criminal Records Act states:

Which convictions are capable of becoming spent?

7.(1) All convictions are capable of becoming spent in accordance with this Act, except the following:

(a) convictions for which a prison sentence of more than 6 months has been imposed;

(b) convictions for sexual offences;

(c) convictions imposed against bodies corporate;

(d) convictions prescribed by the regulations.

(emphasis added)

(2) A conviction may become spent in accordance with this Act whether it is a conviction for an offence against a law of New South Wales or a conviction for an offence against any other law.

(3) A conviction may become spent in accordance with this Act whether it is a conviction imposed before, on or after the date of commencement of this section.

(4) In this section:

"prison sentence" does not include a sentence by way of periodic detention or the detaining of a person under a control order;

"sexual offences" means the following offences:

(a) the offences under sections 61B-61F, 65A-66D, 66F, 73, 74, 78A, 78B, 78H, 78I, 78K, 78L, 78N, 78O, 78Q, 79, 80, 91A, 91B and 91D-9lG of the Crimes Act 1900;

(b) from the date of commencement of Schedule 1 (3) to the Crimes (Amendment) Act 1989, the offences under sections 61I-61P of the Crimes Act 1900;

(c) from the date of commencement of Schedule 1 (6) to the Crimes (Amendment) Act 1989, the offence under section 80A of the Crimes Act 1900;

(d) the offence under section 5 of the Summary Offences Act 1988;

(e) an offence (such as an offence under section 37 or 112 of the Crimes Act 1900) which includes the commission of, or an intention to commit, an offence referred to in paragraph (a),(b),(c) or (d);

(f) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a),(b),(c),(d) or (e);

(g) an offence committed:

(i) before the date of commencement of this section against a law of New South Wales or a law of a place outside New South Wales; or

(ii) after the date of commencement of this section against a law of a place outside New South Wales,

which constituted or constitutes an offence of a similar nature to an offence referred to in paragraph (a),(b),(c),(d),(e) or (f);

(h) an offence prescribed by the regulations as a sexual offence for the purposes of this section.

Therefore, convictions for sexual offences cannot ever become spent under the Criminal Records Act.

54    Section 15 of the Criminal Records Act also states:

Employment in certain occupations

15.(1) Section 12 does not apply in relation to an application by a person for appointment or employment as a judge, magistrate, justice of the peace, police officer, prison officer, teacher, teachers aide or a provider of child care services under Part 3 of the Children (Care and Protection) Act 1987.

(1A) Section 12 does not apply in relation to an application by a person for employment in child-related employment within the meaning of Part 7 of the Commission for Children and Young People Act 1998.

(2) Section 12 does not apply in relation to a conviction of a person for arson or attempted arson if the person seeks to be appointed or employed in fire fighting or fire prevention.

55    So a relevant conviction must be disclosed by a person applying for child-related employment. A conviction for a sexual offence and a conviction for an offence which attracts a prison sentence over 6 months must be disclosed in proceedings before a court.

56    Section 16 of the Criminal Records Act states:

Proceedings before courts

16. (1) Section 12 does not apply to proceedings before a court (including the giving of evidence) or the making of a decision by a court (including a decision concerning sentencing).

(2) However, a court before which evidence of a spent conviction is admitted must, in appropriate circumstances, take such steps as are reasonably available to it to prevent or minimise publication of that evidence.

(3) This Act does not affect any of the following provisions:

. section 15 of the Children (Criminal Proceedings) Act 1987

. section 86 of the Criminal Act 1900

. Part 3.8 (Character) of Chapter 3 and section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995.

Therefore sexual offences committed by a person whilst a child continue to form part of that person's criminal record. A conviction for a sexual offence is not spent even if it is a juvenile record.

57    The applicant submits he is a man of unblemished record for the last 40 years, notwithstanding he refused to take an instruction at the New South Wales Ambulance Service and acted unfairly towards a female employee for which, after 22½ years of service, he was dismissed. The applicant submits he has been exposed to young children throughout his career, including performing his duties as a part time bus driver for the last 30 years. He has also lectured with the second respondent where the ages of the children can go down to 15 years, although he does not recollect such young children attending the courses. He submits while working for 22½ years for the Ambulance Service he regularly came into contact with young persons. The applicant submits not a breath of scandal has been associated with his character following his juvenile conviction. The applicant gave sworn evidence he knows of no other allegation against him of any other sexual misconduct or any other unlawful conduct by him in the last 39 years.

58    The applicant expressed to the Court his horrified reaction on reading the court documents related to the charge. He said of the facts as outlined in the Juvenile Court documents "it horrifies me", he was "horrified" and he felt "totally horrified". Given he was a juvenile at the time, it is possible this is the very first time the applicant has ever been confronted with the documents presented to the court outlining other adults' views of the facts in the case. His own statement at the time said he touched "her private part". The act of violence in the shooting of a pellet gun to scare off the older cousin of the girl are not referred to in the applicant's statement to Police nor was any question asked of him by the Police as to his use of violence. The charge against the applicant never mentioned any other violent act other than the sexual assault offence.

59    The Child Protection Act places an onus on the applicant to persuade the Commission he should not be declared a "prohibited person". The respondent submits the applicant is not a man of truth. The question before the Commission is even if, on the evidence, the applicant is found to be not a man of truth, does that finding make him a risk to the safety of children? I accept that a 56 year old man in a country town who receives a telephone call to inform him he is a "prohibited person" would be floundering at that time. The applicant's medical history reveals he had a minor stroke in 1988 and for the last 14 years has been on high blood pressure tablets and blood thinners. The applicant was not given, at first, the best legal advice. For example, he was advised he could continue with his work as his work was with children over the age of 18 years. As the case proceeded the applicant revealed he was still working casually as a school bus driver. The applicant had to be advised and had to quickly inform this employer as to his position. By agreement the stay of the declaration was extended to cover this employment.

60    From the evidence, the applicant has lived an unblemished life in our community for the last 39 years. I cannot accept, even if I should find the applicant not a witness of truth as to some matters of fact, that such a finding necessarily translates to a finding he poses a risk to the safety of children. I accept the applicant genuinely believed his juvenile record had been expunged. I accept the applicant's expressed sincere contrition and the expression of personal horror he felt as an adult, now confronted with the facts of the case. However, I am not persuaded the applicant, when reminded, even if he had blocked the whole event from his mind, would not have recalled the age of the child or the considerable age difference between himself and the child's.

61    As to his employment with the Ambulance Service, a document before the court reveals the applicant was terminated because a Committee of Inquiry of NSW Ambulance Service found he failed to obey a lawful instruction; he was negligent in the discharge of his duties in failing to assist management in the resolution of a serious workplace grievance and he demonstrated threatening and intimidatory behaviour towards a female ambulance office. No claim has been pressed that this history alone would make him a prohibited person.

62    The second respondent asserts the applicant denied this detail of his employment history when, in his affidavit, he said there had been no further complaints as to his conduct with children "or otherwise". I do not accept the addition of those words in a part of his affidavit directed towards his criminal history makes him not a witness of truth as to his employment history. He made no direct statement that denied the circumstances of his departure after 22½ years from the Ambulance Service. I note further the reliable and steady years of employment served by the applicant.

63    I reject the submission the applicant should have called further evidence to satisfy the Commission as to his character and mental condition. The applicant's work history is before the Commission. The applicant presented himself for vigorous cross examination. The applicant was clearly totally lost in these procedures. I believe he tried at first to deny this conviction. He thought, under the law, he did not have to declare it. He then says he was in denial as to the facts of the conviction. I have accepted the first proposition but not in totality the second proposition. I do not believe, after the applicant's recollection was prompted, he would not recollect the 8 year age difference between himself and the child. I do not accept however the determination required of the Commission cannot be made without the assistance of medical or character evidence. The question before me for determination is: does the applicant pose a risk to the safety of children?

64    As to the work the applicant performed with the second respondent in November, this work was arranged by the head teacher organising the course working for the second respondent. The greater irony is, when the claim for this work was made as contract work, the second respondent, with one hand declared the applicant a "prohibited person", with the other hand told him he was not a contractor but still an employee and paid him directly. Mr Petrie, the head teacher, working for the second respondent provided a statement as to the performance of this work.

65    I accept the applicant's evidence that he was in denial as to the offence. I accept he believed from his life's experience, such as passing public scrutiny and official scrutiny to become a Justice of the Peace, that his conviction was a "spent" conviction because it was a juvenile conviction. While the applicant avoided until the last acknowledging the full facts of the incident, the fact alone that he was not truthful on this issue does not persuade the Commission he poses a risk to the safety of children.

66    I have in my consideration taken into account the warning Wright J, President in A and the Commission for Children and Young People (No. 2) gave [at 30]:

. . . The applicant will most likely have had no further convictions and not be the subject of further adverse notifications to the authorities. Accordingly, the fact alone of absence of further convictions and absence of further adverse notification to the authorities are not matters of themselves which will necessarily, or be likely to, lead to a grant of an order under s9.

The Commission has also taken into its consideration the obligation placed on it by the statute to consider the public interest in ensuring the elimination "to the greatest extent possible" of the risk that this applicant might pose to the safety of children.

67    The Commission takes into its consideration the following facts: the applicant has an unblemished record over 39 years performing work in which he had responsibility for the care and protection of young children. Further, the conviction recorded against the applicant was made when the applicant was a juvenile. Evidence reveals the applicant served his sentence without breach. He has now admitted all of the dreadful facts of the offence, difficult though that has been for him. He has generally served the community well as one of its citizens. He has again, as he did as a juvenile, expressed his sincere contrition for the offence. The Commission also takes into account the fact that much of the advice the applicant initially received from superiors at work and lawyers as to the handling of this matter was not wise. I find, on balance, these facts persuasive in my determination that the applicant does not provide a risk to the safety of children.

68    As this is one of the first matters to come before the Commission for close examination some issues of procedure were examined. I recommend to both respondents that the declaration required of the employee under the Child Protection Act should refer to the true effect of the Criminal Records Act 1991. I accept there is a general, but false, perception in the community that the records of a juvenile related to all offences over a period of time are expunged. There should be a statement in the declaration as to the status of sexual convictions especially related to juvenile offences.

69    Further, the evidence revealed the second respondent had determined all its teachers were working in a risk position. It prepared a job description of the applicant's duties and graded the task "High Risk". It seems a little unfair the applicant was asked to assist in the preparation of this document without his knowledge and without the knowledge that it would then be used against his interests. He was labelled "High Risk" because of the serious nature of his offence but his work was also labelled "High Risk" relying on some questions put obliquely to the applicant as well as to other persons. This procedure as defining the work task, if it is a necessary requirement under the Act, needs refinement.

70    In accordance with the provisions of the Child Protection (Prohibited Employment) Act 1998, I find:

1. The applicant has been convicted of a serious sex offence:

(s5(3)).

2. The applicant is a prohibited person: (s5(1)).

3. The applicant is undertaking child-related employment:

(s3(a), s3(a)(iii) and s6(1)(b)).

4. The applicant does not pose a risk to the safety of children

(s9(4)).

In the use of the Commission's discretion I make the following orders:

1. The Commission orders Child Protection Act is not to apply to the applicant in respect of the specified offence of indecent assault on an 8 year old child in 1961.

2. The Commission orders the Commissioner of Police be notified as to the terms of the above declaration and order.

LAST UPDATED: 12/04/2001