H v Commission for Children and Young People (No 2) [2003] NSWIRComm 48 (7 February 2003)

Last Updated: 2 June 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : H v Commission for Children and Young People (No 2) [2003] NSWIRComm 48

FILE NUMBER(S): IRC6042

HEARING DATE(S): 07/02/2002

EX TEMPORE DATE: 07/02/2003

PARTIES:

APPLICANT

H

RESPONDENT

The Commission for Children and Young People

INTERVENOR

New England Institute of TAFE

JUDGMENT OF: Peterson J

LEGAL REPRESENTATIVES

APPLICANT

Mr A A Hatcher of counsel

SOLICITOR

Jones Staff & Co.

SYDNEY.

RESPONDENT

Mr G W Moore of counsel

SOLICITOR

Crown Solicitor's Office,

SYDNEY.

INTERVENOR

Ms S Winters of counsel

SOLICITOR

MLJ Lawyers

NEWCASTLE.

CASES CITED: H v Commission for Children and Young People (No 1) [2001] NSWIRComm 256

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: PETERSON J

FRIDAY 7 FEBRUARY 2003

Matter No. IRC6042 of 2001

"H" AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE & ANOR

Application under s 9 of the Child Protection (Prohibited Employment) Act 1998

DECISION (Extempore)

1 HIS HONOUR: These are substantive proceedings concerned with an application for a final order of the Commission declaring that the Child Protection (Prohibited Employment) Act 1998 ('the Act') not apply to the applicant in respect of a particular offence.

2 The Commission on 2 November 2001 made an interlocutory order staying the operation of the Act pending the determination of the substantive application. That order was accompanied by reasons given for the order [2001] NSWIRComm 256. Those reasons set out the provisions of the Act as they then were. They dealt with the relevant scheme, found the facts upon which the interlocutory order was to be considered and expressed certain conclusions. Those conclusions necessarily included the question whether at that time the applicant was perceived to present a risk to the safety of children as referred to in s9(4) of the Act. The conclusion was that no such risk existed and accordingly an order was made. That order was subject to three conditions which are set out in par 19 of the interlocutory decision.

3 The applicant now seeks a final order without conditions. It is important to note that the Commission for Children and Young People, the respondent in the proceedings, whilst at the interlocutory stage seeking the imposition of conditions, now does not make any submission in opposition to the application for an unconditional order. That position is also adopted by the intervener, the New England Institute of TAFE.

4 The evidence now before the Commission includes an affidavit by the applicant which indicates that he has complied with the terms of the order made on 2 November 2001 and that he has declined various invitations to undertake both roles and activities in the diving club referred to in the conditions.

5 Also contained in the evidence now before the Commission is a report of consulting psychologist Janet Howell who assessed the applicant relevantly in the context of the question in her expert view whether the applicant poses a risk to children. In a report dated 24 April 2002, Ms Howell concluded in these terms:

It is not possible to totally rule out a risk of future abuse, however, I do not think there is sufficient evidence to support that H poses a risk to children that is greater than applies to the general adult population.

6 Mr Hatcher has submitted, without demur from the respondent and the intervener, that that conclusion may be taken to mean that he would pose to children no greater risk than the man in the street. That is a view of the matter that seems to me to be open and appropriate.

7 Two supplementary reports by Ms Howell deal with a particular matter which was raised arising from the report to which I have referred but I feel no need to advert to those further reports. They do not bear upon the primary conclusion which I have taken from the report of 24 April 2002.

8 In these circumstances, I am satisfied that the conclusions to which the Commission came in its interlocutory decision, which take into account the relevant statutory test provided by s9, remain open. I also then took into account one of two supplementary provisions inserted by a statutory amendment in s9(5), namely s9(5)(a)(1) which refers to "the period of time since those offences were committed". The other amendment inserting s9(5)(d)(1), which refers to "the prohibited person's present age", is a matter I now take into account and consider that the present age of the applicant presents no barrier to the Commission forming the primary conclusion that he does not pose a risk to the safety of children within the meaning of the Act.

9 Having regard to those earlier conclusions, which as I have said remain open, and the further evidence before the Commission, I consider it is appropriate that s9(5) of the Act not apply to the applicant in respect of the identified offence. I make that order without condition.

10 I am satisfied that it is inappropriate in a final order to maintain the first condition provided in the stay order, essentially for the reason that to impose such a condition on a permanent basis would seem to me to run entirely contrary to the fundamental requirement of the Act, namely that a finding must be made that applicant does not pose a risk to the safety of children. To ban the dealing with any other child-related employment seems to carry with it, at least in a final context, the notion that there would be some risk otherwise involved.

11 As to the second condition, which related to unsupervised contact with female students less than 18 years of age, from what has been put I am satisfied that that condition is no longer appropriate. I am also satisfied that the applicant should be now free to take up voluntary roles within the diving club. I note the submission made on his behalf that he does not intend to participate in helping with instruction or classes. The order shall operate forthwith.

LAST UPDATED: 27/05/2003