|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Industrial Relations Commission of New South Wales Decisions |
Last Updated: 7 March 2003
NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION
CITATION : Commission for Children and Young People v "A" [2003] NSWIRComm 6
FILE NUMBER(S): IRC 6202
HEARING DATE(S): 12/04/2002, 09/05/2002
DECISION DATE: 29/01/2003
PARTIES:
APPELLANTS:
Commission for Children and Young People
NSW Department of Education and Training
RESPONDENT:
"A"
JUDGMENT OF: Wright J President Walton J Vice-President Kavanagh J
LEGAL REPRESENTATIVES
APPELLANTS:
Mr P A Johnson SC and Mr P F Singleton of counsel
Crown Solicitor
(I V Knight)
RESPONDENT:
Mr P F Lowson of counsel
MacMahon Associates, Lawyers
(Mr P A MacMahon)
CASES CITED: AG v Commission for Children and Young People [2001] NSWADT 163
Athlumney; Ex parte Wilson [1898] 2 QB 547
Bolton; Ex parte Beane (1987) 162 CLR 514
Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268
Byrnes v The Queen (1999) 199 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner for Children and Young People v 'AG' [2002] NSWSC 582
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Corporate Affairs Commission v Yuill (1991) 172 CLR 319
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Kingston v Keprose (1987) 11 NSWLR 404
Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380
LL v Commission for Children and Young People [2001] NSWADT 174
Mathieson v Burton (1971) 124 CLR 1
Maxwell v Murphy (1957) 96 CLR 261
Mills v Meeking (1990) 169 CLR 214
Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627
R v Sales (1989) 42 A Crim R 297.
Rose v Hvric (1963) 108 CLR 353
Royal Automobile Club of Australia, Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282
Shephard, Re Applications of [1983] 1 NSWLR 96
Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 36 NSWLR 594
LEGISLATION CITED: Child Protection (Offenders Registration) Act 2000
Child Protection (Prohibited Employment) Act 1998 s 3 s 4 s 5 s 6 s 9 s 12
Commission for Children and Young People Act 1998
Crimes Act 1900 s 66C s 579
Criminal Records Act 1991 s 17
Industrial Relations Act 1996 s 152 s 154 s 187 s 188
Interpretation Act 1987 s 30 s 33
Local Government Act 1993 s 274 s 275
Ombudsman Amendment (Child Protection and Community Services) Act 1998
JUDGMENT:
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
IN COURT SESSION
FULL BENCH
CORAM: WRIGHT J, President
WALTON J, Vice-President
KAVANAGH J
Wednesday, 29 January 2003
Matter No IRC 6202 of 2001
COMMISSION FOR CHILDREN AND YOUNG PEOPLE and ANOTHER v “A”
Application for leave to appeal and appeal against a decision of Hungerford J given on 28 August 2001 in Matter No IRC 4540 of 2000
JUDGMENT OF THE COURT
1 This judgment concerns an application for leave to appeal and, subject to leave being granted, an appeal by the Commission for Children and Young People and the New South Wales Department of Education and Training against a judgment of Hungerford J delivered on 28 August 2001. The proceedings before his Honour related to an application under s 154 of the Industrial Relations Act 1996 for a declaration that the respondent to the appeal, (pseudonymously referred to in the proceedings as "A"), was not a "prohibited person" within the meaning of s 5 of the Child Protection (Prohibited Employment) Act 1998.
2 The Child Protection (Prohibited Employment) Act prohibits certain people from engaging in "child-related employment". A "prohibited person" is defined by s 5(1) of the Act as 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". The respondent comes within the former description, having been convicted of an offence against s 71 of the Crimes Act 1900 (see now s 66C of that statute), some 30 years ago, that he did carnally know a girl under the age of 16 years. This offence is a "serious sex offence" as defined by s 5(3) of the Act thereby making the respondent, prima facie, a "prohibited person" within the terms of s 5(1). By the terms of s 6(1) it is an offence for a "prohibited person" to apply for, undertake or remain in child-related employment.
3 At the time of his conviction in 1971, the respondent entered a plea of guilty and was placed on a good behaviour bond of two years on condition that he place himself under the supervision of the Adult Probation Service. He could have been called upon for sentence should the bond have been breached, however that eventuality never came to pass. The respondent complied with the terms of the recognizance and since then has not transgressed.
4 The respondent is currently employed as a secondary school teacher with the Department of Education and Training. If he were found to be a "prohibited person", so as to make the statute applicable to him, he would be unable to remain or to continue in "child-related employment" as defined, including his present employment as a secondary school teacher, unless an order were made by a relevant tribunal declaring the statute was not to apply to him, the tribunal being satisfied that he no longer posed a risk to the safety of children.
5 After the commencement of the Child Protection (Prohibited Employment) Act on 3 July 2000, the respondent made application to the Commission, pursuant to s 9(1) of that Act, for an order declaring that the Act did not apply to him in respect of the offence for which he had been convicted in 1971. As noted above, such an order, if made, would exempt the respondent, so far as the 1971 conviction was concerned, from the operation of the Act. At the hearing of the application a matter arose as to the effect of s 579 of the Crimes Act 1900. That section provides that certain convictions may be disregarded for all purposes after the expiration of 15 years from the date of the conviction. In the respondent's case, this meant that from March 1986, he was entitled to have his conviction disregarded, in the words of s 579, "for all purposes whatsoever".
6 Towards the conclusion of the hearing of the respondent's s 9(1) proceedings before Hungerford J, an application for declaratory relief pursuant to s 154 of the Industrial Relations Act was made seeking a declaration that the respondent was not a "prohibited person" within the terms of the Child Protection (Prohibited Employment) Act. It is his Honour's decision on the application for a declaratory order that is the subject of this application for leave to appeal and appeal.
The Issue at First Instance
7 As was identified by his Honour, the sole issue raised on the application for declaration at first instance concerned the interaction between the relevant provisions of the Child Protection (Prohibited Employment) Act and the Crimes Act.
8 There were, in essence, two main contentions put on behalf of the respondent at first instance:
1. By the operation of s 579 of the Crimes Act, the prior offence of the respondent "is to be disregarded for all purposes including statutory provisions, which in turn means that it is to be disregarded for the purposes of the Child Protection (Prohibited Employment) Act": see, for example, R v Sales (1989) 42 A Crim R 297. There was no inconsistency between the operation of the Child Protection (Prohibited Employment) Act and the Crimes Act. The legislature is presumed to have enacted the provisions so as to stand together where such a construction is possible. If the provisions are read in this way, after the effluxion of 15 years from the relevant conviction, the person convicted is entitled to the benefit of s 579 of the Crimes Act and any such conviction is to have no legal effect whatsoever. The Child Protection (Prohibited Employment) Act would, therefore, not apply to the respondent.
2. Even if there were inconsistency between the provisions of the Child Protection (Prohibited Employment) Act and s 579 of the Crimes Act, the right of the respondent under s 579 had "crystallised" in 1986, many years prior to the enactment of the Child Protection (Prohibited Employment) Act. It would therefore require clear and express language in the subsequent enactment for it to be inferred that the legislature had intended to take away a vested right enshrined in statute: see s 30 of the Interpretation Act 1987; Re Athlumney; Ex parte Wilson [1898] 2 QB 547; Maxwell v Murphy (1957) 96 CLR 261; Mathieson v Burton (1971) 124 CLR 1
9 The essence of the appellants' submissions at first instance may be stated in the following way:
1. On its face an inconsistency arises between the operation of s 579 of the Crimes Act and the provisions of the Child Protection (Prohibited Employment) Act. The Child Protection (Prohibited Employment) Act designates as a "prohibited person" any person who has at any time been convicted of a "serious sex offence" as defined.
2. When interpreting the operation of the two statutes, guidance was to be obtained from the legislature's manifest policy that child protection was more important than the clearing of "criminal slates", and that, as such, s 12 of the Act should be construed as an attempt to "sweep away" the effect of any and all laws upon which a person might otherwise be able to rely. It did not matter whether the rights under s 579 had crystallised or not. That provision does not accord some annulment of conviction or pardon that crystallises at some particular point in time. It provided on ongoing benefit which accrued by virtue of the Crimes Act. It is incorrect to speak of the benefit afforded a person convicted under s 579 as having accrued or vested; it is contingent on the continuing operation of s 579 of the Crimes Act.
3. Section 12(1) by reference to "any" Act or other law not only impliedly contemplates s 579 of the Crimes Act, it expressly does so. Such a provision need not make specific reference to other legislation. It is an express recognition that no law, including s 579 of the Crimes Act, ought stand in the way of the operation of the Child Protection (Prohibited Employment) Act. If the Court is satisfied that there is an inconsistency between the two legislative provisions, then there can be no doubt that s 12 provides the solution.
10 In their grounds of appeal the appellants contended that Hungerford J had erred in holding that the applicant was not a "prohibited person" within the meaning of the Child Protection (Prohibited Employment) Act, and that his Honour erred in finding that s 12 of that Act did not operate to deprive the applicant of the benefit conferred by s 579 of the Crimes Act. As was noted by his Honour this case “comes down to a pure question of statutory construction and the application of the ordinary principles to a determination of competing legislation”. We agree with his Honour in recognising that, having regard to the statutory provisions concerned and the apparent purposes of the respective statutes, "the resolution of the problem has its own complexities".
Statutory Provisions
11 Having referred to the issues in the case, it is convenient at this point to set out the relevant statutory provisions. Section 579 of the Crimes Act is in the following terms:
579 Evidence of proceedings dealt with by way of recognizance after 15 years
(1) Where, following the conviction of any person for an offence or a finding that a charge of an offence has been proved against any person, whether the conviction or finding was before or after the commencement of the Crimes (Amendment) Act 1961:
(a) sentence in respect of the conviction was suspended or deferred upon the person entering into a recognizance or, in substitution for sentence in respect of the conviction, the person was required to enter into a recognizance, or no conviction in respect of the finding was made and the person was discharged conditionally on his or her entering into a recognizance, and
(b) a period of fifteen years has elapsed since the recognizance was entered into:
(i) without the recognizance having been forfeited during that period or a court having found during that period that the person failed to observe any condition of the recognizance, and
(ii) without the person having, during that period, been convicted of an indictable offence on indictment or otherwise or of any other offence punishable by imprisonment (otherwise than under section 82 of the Justices Act 1902 as amended by subsequent Acts) or without a finding during that period that a charge of such an indictable or other offence has been proved against the person,
the conviction or finding shall, where that period expired before the commencement of the Crimes (Amendment) Act 1961, as on and from that commencement, or, where that period expires or has expired after that commencement, as on and from the expiration of that period:
(c) be disregarded for all purposes whatsoever, and
(d) without prejudice to the generality of paragraph (c), be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect.
Without prejudice to the generality of the foregoing provisions of this section, any question asked of or concerning that person in or in relation to any criminal, civil or other legal proceedings otherwise than by his or her counsel, attorney or agent or other person acting on his or her behalf may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into.
(2) Notwithstanding the provisions of subsection (1), where in any criminal, civil or other legal proceedings the person first referred to in that subsection, by himself or herself, his or her counsel, attorney or agent or other person acting on his or her behalf, otherwise than in answer to a question that can, in accordance with the last paragraph of that subsection, be answered in the negative, makes an assertion that denies the fact that the conviction or finding took place or that the recognizance was entered into, then the conviction, finding or recognizance is admissible:
(a) in those proceedings, as to the character, credit or reputation of the person so referred to,
(b) in any prosecution for perjury or false swearing founded on the assertion.
The non-disclosure of the conviction, finding or recognizance in the making or giving of a statement or evidence as to the good character, credit or reputation of the person so referred to shall not of itself be taken, for the purposes of this subsection, to mean that the statement or evidence contains such an assertion.
(3) In this section legal proceedings includes any application for a licence, registration, authority, permit or the like under any statute.
(4) This section does not affect the operation of section 55 of the Defamation Act 1974, or the operation of section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995, for the purposes of section 55 of the Defamation Act 1974.
12 The relevant provisions of the Child Protection (Prohibited Employment) Act include certain of the definitions within s 3, together with ss 5, 9 and 12. Although there are some excepted areas referred to in s 4 where the Act does not apply, those areas have no relevance to these proceedings and may be put aside. Section 3 provides the following definitions:
"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.
"conviction" includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.
"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.
13 Sections 5, 9 and 12 are in the following terms:
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, or a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000.
(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.
(3) In this section:
"serious sex offence" means (subject to sub sections (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 purpose of this Act if the conduct constituting the offence has ceased to be an offence in New South Wales.
(5) An offence involving sexual activity or an act of indecency is not a serious sex offence for the purposes of this Act if the conduct constituting the offence:
(a) occurred in a public place, and
(b) would not have constituted an offence in New South Wales if the place were not a public place.
9 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.
(3) The Industrial Relations Commission may not make an order under this section unless:
(a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act, or
(b) the person was such an employee who was dismissed from that employment under this Act.
(4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.
(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(a1) the period of time since those offences were committed,
(b) the age of the person at the time those offences were committed,
(c) the age of each victim of the offences at the time they were committed,
(d) the difference in age between the prohibited person and each such victim,
(d1) the prohibited person's present age,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.
(6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.
(7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.
(8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time 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.
(11) The following applies to proceedings before the Administrative Decisions Tribunal under this section:
(a) the Tribunal may not award costs.
(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings.
12 Relationship with other Acts and laws
(1) This Act prevails to the extent of any inconsistency between it and any other Act or law.
(2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or employee contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment in accordance with this Act
The Judgment Appealed From
14 Having set out the history to the proceedings, the relevant statutory provisions and the legislative history, his Honour made this observation:
[28] On the one hand, it seems to me, the Crimes Act in s 579 is concerned to do justice to a person who transgressed more than 15 years ago by committing an offence for which the benefit of a bond was allowed for what was an offence found by the sentencing judge not to be a substantial transgression. On the other hand, the Child Protection (Prohibited Employment) Act has the purpose of prohibiting the employment in child-related employment of persons found guilty of committing a serious sex offence ("serious" in the sense as deemed by the legislation of the offence but not, I emphasise, in terms of the degree of criminality of the offender in the circumstances as found by the sentencing judge), without any explicitly stated time-limitation period, in order to protect children against possible harm unless a relevant tribunal finds that the person concerned does not, according to specified criteria, pose a risk to the safety of children. It would be all too expedient, but I think a denial of a proper consideration of the applicant's situation in terms of his now crystallised rights under s 579 for in excess of 15 years, to look at the apparent purpose of the Child Protection (Prohibited Employment) Act and to find he is a prohibited person simply because he was convicted as having committed the subject offence. Thus, one must, on the approach I consider proper, review the essential interaction between the competing statutes to ascertain according to the ordinary rules the respective limits of their operation.
15 His Honour continued, after having summarised the parties' contentions on the interaction of the two statutes:
[37] The present task confronting the Court is the effect the two State Acts concerned have upon each other, that is, whether there is any inconsistency between them. If there is, then, in my view, s 12(1) of the Child-Protection (Prohibited Employment) Act would operate to prevail over s 579; if there is not, then, in my view, the applicant would be entitled to the declaration in the terms sought. ...
16 Hungerford J approached the interaction of the statutes on the "very strong presumption that the legislature had no intention of contradicting itself" when enacting legislation that may potentially conflict in operation with earlier enactments (referring to Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 36 NSWLR 594 at 604, Re Applications of Shephard [1983] 1 NSWLR 96 at 106 - 107, Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268 and Royal Automobile Club of Australia, Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282 at 292 - 293).
17 Having referred to these authorities, his Honour then remarked:
[39] What emerges, I think, from those authorities of relevance to the present case is the presumption that in enacting the Child Protection (Prohibited Employment) Act the legislature did not intend to contradict what was an existing and long-standing (for nearly 40 years) beneficial provision in the form of s 579. It is to be emphasised that that section allows individual persons relief against the continuing stigma of a conviction for an offence or a finding that a charge for an offence has been proven against them. And, it seems to me on the authorities, the presumption is reinforced by the rule that the legislature intends both statutes to operate in their own terms, and in their own particular areas of concern, unless by clear and express words the earlier provision be derogated from, in whole or in part, by the later provision.
The crux of his Honour’s decision is to be found in the following passages:
[41] The Child Protection (Prohibited Employment) Act on its face seems plain enough. Its object is the protection of children. That protection, at least in one respect and to which the statute is solely directed, is to be achieved by excluding from child-related employment a person considered inimical to the stated purpose and referred to as a prohibited person: see s 6. Central to the achievement of the protection is who or what class of person is within the description of a prohibited person. The statute defines such a person as one convicted (including a finding that a charge for an offence has been proven but without proceeding to a conviction) of a serious sex offence, whether before or after the commencement of the legislation on 3 July 2000: see s 5. A person may obtain relief against the strictness of those provisions by making an application and obtaining an order that the statute is not to apply to the person in respect of the specified offence: see s 9.
[42] Against that, s 579 (with the wide scope of its application to all offences as given by s 3 of the Crimes Act) is plain in relation to any offence, including those of the type caught by s 5(3) of the Child Protection (Prohibited Employment) Act, that conviction for the offence is to "be disregarded for all purposes whatsoever", "be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect" and any question "may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into" on certain conditions being satisfied. Those conditions, in short, are that the person entered into a recognizance and a period of 15 years has elapsed since the recognizance was entered into, provided the person observed the conditions of the recognizance and during that period was not otherwise convicted of an offence or a finding made that a charge had been proved against him.
[43] The stated object of the Child Protection (Prohibited Employment) Act is to exclude from child-related employment prohibited persons, that is persons convicted of a serious sex offence, unless an order be made declaring the statute inapplicable because they do not pose a risk to the safety of children. In my view, the patent intent of the legislature was the protection of children. However, the statutory scheme seeks to achieve that by focussing upon conviction for a specified offence, albeit whether before or after the commencement of the statute. Section 579 has the object of a conviction for an offence, including a sex offence as here, being disregarded for all purposes whatsoever, that is legal and otherwise, after a period of 15 years on the stated conditions being met. The intent of the measure, clearly I think, is that after the expiration of the stated period, and in relation to what was not a substantial transgression, the person has removed the continuing stigma of a criminal conviction and the benefit of a clean criminal record. May those respective statutory objects, as so identified and having in mind the aim of the legislature in so enacting them, operate or stand together? I consider they can and there is nothing in the statutory scheme of the Child Protection (Prohibited Employment) Act , in my view, to make it clearly and indisputably contradictory of s 579. Indeed, I am satisfied that "the fairer and more convenient" construction, to adopt the approach of Mason J in Cooper Brookes (147 CLR at p 321), and one which is consistent with the competing provisions, would only be for them to operate as each subject to and in empathy with the other.
[44] My reasons for so construing the legislation may be stated quite shortly. The very basis of the scheme in the Child Protection (Prohibited Employment) Act is the status of a person as a "prohibited person" which, in turn, is made to depend upon the person having been convicted of a serious sex offence; if there not be at any relevant time such a conviction, then, it must be the case, the person would not be a prohibited person. In other words, I see no difficulty in the operation of the statute, either as to its terms or in their implementation, in the conviction concerned being one which is only properly recognisable and effective as such. Where a conviction for an offence for some reason, such as s 579 here, is no longer truly effective in any respect then, in my view, it should not, indeed cannot, be sufficiently active or operative to be a relevant conviction for the purposes of s 5 of the Child Protection (Prohibited Employment) Act ; it has, by statute, to be disregarded and is no longer of any legal force or effect. That view of the interaction between the two provisions seems to me to be consistent with the ordinary meaning of the words used in each and as being consistent with the legislative intent thereby evinced as to both schemes. I see no ambiguity in the provisions as so understood.
[45] In the result, I would construe the competing provisions to operate in the following way -
§ A prohibited person within the meaning of s 5(1) of the Child Protection (Prohibited Employment) Act is a person who has been convicted of a serious sex offence as specified in s 5(3) thereof, whether the conviction occurred before or after the commencement of the statute on 3 July 2000.
· The subject conviction must be one as to which regard may be had in the sense that it is and continues to be properly recognisable and to have legal force and effect; if it were not so, the conviction could have no relevant and effective operation for the purposes of the Child Protection (Prohibited Employment) Act; it would be meaningless for that purpose.
§ Section 579 of the Crimes Act operates in respect of the conviction (within the extended meaning of that word by s 3 of the Child Protection (Prohibited Employment) Act) for a serious sex offence, as defined in s 5(3) of the Child Protection (Prohibited Employment) Act , where a recognizance was entered into, so that on the expiration of a period of 15 years since the recognizance was so entered and the other conditions contained in s 579 are met the conviction ceases to be a relevantly operative and effective conviction for the purpose of characterising a person as a prohibited person under the Child Protection (Prohibited Employment) Act .
§ Section 579 operates whether the conviction concerned occurred before or after the commencement on 3 July 2000 of s 5(1) of the Child Protection (Prohibited Employment) Act .
[46] The view which I have reached, as I have said, was based upon the ordinary meaning of the competing statutory provisions and the legislative intent therefrom perceived. However, and somewhat as confirmation of the conclusion reached, I have relied upon the debate in both the Legislative Assembly and the Legislative Council during the second reading of the bill leading to the enactment of the Child Protection (Prohibited Employment) Act:: see s 34(1)(a) of the Interpretation Act . In that respect, I have noted that the bill was introduced as a response to a key recommendation of the Wood Royal Commission into paedophilia and, although it is apparent that the statute extends well beyond that aspect to cover serious sex offences generally, it is proper nevertheless to read the statute in the context of its origins. Very much related to that approach, I felt confirmed in the ordinary meaning reached as to the provisions by what was said during the debate in the Legislative Council, extracts from which have been cited earlier, when Ms Forsythe spoke of balancing the rights of children with the rights of employees and the vice in enhancing the rights of children to the detriment of the rights of employees. I have to say that I too was concerned to strike a balance in applying the ordinary rules as to statutory construction. Further, the caution expressed by Mr Primrose had relevance to the aspect of a balanced approach. Of course, and of much importance in my view, the comments by the Minister in 1961 during the debate on the enactment of s 579, the relevant part of which has been cited above, only serve to further confirm the conclusion I have reached as to the interaction of the competing provisions.
18 The decision then turned to consider whether the "rights" which had accrued or "crystallised" in favour of the respondent under s 579 of the Crimes Act, were to be displaced or removed by the enactment of the Child Protection (Prohibited Employment) Act, his Honour considering that such an "extreme" result should not be lightly found, particularly in light of "the generality of s 12(1)...relating to inconsistency":
Of course, it is to be borne in mind that what the legislature has given that the legislature may take away and it is established also that a later parliament is not bound by what an earlier parliament has enacted: cf R v Kidman (1915) 20 CLR 425 at p 451 per Higgins J. However, I do not consider the legislature in enacting the Child Protection (Prohibited Employment) Act intended to contradict itself from what was already contained in s 579 of the Crimes Act and had been for nearly 40 years.
19 Hungerford J referred to long standing law associated with the dispossession of an accrued right from a subject, including the judgments of Wright J in Re Athlumney; Ex parte Wilson at 551 - 552 and Dixon CJ in Maxwell v Murphy at 267, concluding (at [50]):
I am satisfied that a review of the provisions of the Child Protection (Prohibited Employment) Act discloses nothing to suggest that the legislature intended to derogate from or otherwise affect retrospectively a right already crystallised under s 579. I am firmly of that view even if, which I do not think to be the case, the legislature intended to remove the rights accruing but not yet crystallised under s 579. To so view the matter would not only infringe the general common law principle but also that principle as enshrined in s 30(1)(b), (c) and (4)(b) of the Interpretation Act as to the protection of statutory rights and even in a situation where those rights have merely commenced to accrue under the earlier legislation in the sense of being contingent. As Gibbs J, as he then was, observed in Mathieson v Burton (1971) 124 CLR 1 at p 23, in relation to the similar provisions in s 8(b) of the Interpretation Act of 1897 - "... does not apply where there is merely a hope or expectation that a right will be created ... but it does protect anything that may truly be described as a right, 'although the right might fairly be called inchoate or contingent'." In so saying, his Honour referred with approval to the general common law rules of construction as stated in Athlumney and in Maxwell.
20 In the result, Hungerford J made a declaration under s 154 of the Industrial Relations Act and consequential orders in the following terms:
1. DECLARE that on the true construction of the Child Protection (Prohibited Employment) Act 1998 "A" is not a "prohibited person" as defined in s 5 thereof and is entitled to engage in child-related employment free from the operation of the said Act with respect to him.
2. ORDER that costs be reserved.
3. DIRECT that the Industrial Registrar serve a sealed copy of these orders on the Commissioner of Police.
Submissions of Appellants
21 The appellants contend that the fundamental issue on this appeal, as was the case at first instance, is whether the provisions of the Child Protection (Prohibited Employment) Act, being a statute that was created later in time to the provisions of s 579 of the Crimes Act, should be interpreted as over-riding the Crimes Act so as to have the effect of designating the respondent a "prohibited person" within the meaning of that expression in the Child Protection (Prohibited Employment) Act.
22 On the appellants' contention, this would result from the application of any of the principles of statutory construction, be it a purposive or more literal approach. Whilst it has been held that is open to a court to depart from the words used in a statute to give effect to the legislative intent, there is no need to depart from the words of the statute in that way in this case as the ordinary grammatical meaning of the words of the Child Protection (Prohibited Employment) Act would, on the appellants' submission, lead the Court to the view that the statute is to prevail over the provisions of the Crimes Act.
23 The paramount rule of construction is that legislation is to be construed so as to give effect to the object or purpose of the Act: see s 33 of the Interpretation Act; Kingston v Keprose (1987) 11 NSWLR 404 and Corporate Affairs Commission v Yuill (1991) 172 CLR 139. When seeking to give effect to that object, the importance to be afforded to the context in which the relevant legislation appears has often been emphasised: Gibbs CJ in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312.
24 Whilst the Child Protection (Prohibited Employment) Act does not contain an objects provision, its purpose and objective are abundantly clear, it is an Act for the protection of children and, more particularly, their protection from those engaged in child-related employment. So much is plain from reference to the title of the statute. It is equally clear that the nature of the protection sought to be afforded children is protection from "sexual molestation or other abuse". To this end, the Act prohibits persons convicted of "serious sex offences" from working in "child-related employment" unless they have first established, to the satisfaction of either the Industrial Relations Commission or the Administrative Decisions Tribunal that they no longer "pose a risk to the safety of children".
25 The Child Protection (Prohibited Employment) Act is broad in its scope, providing a lengthy and wide reaching definition of "child-related employment" and a broad definition of "employment". Importantly for these proceedings, the Child Protection (Prohibited Employment) Act also provides an extended meaning to the definition of "conviction", so as to include persons who have had an offence found proven against them, but not had a conviction entered. The meaning to be afforded the term "serious sex offence" has equally been drawn in wide terms.
26 The appellants emphasised the "blanket" approach adopted by the legislation, providing for exemptions, defences and transitional arrangements as to the catch-all definitional provisions. On the appellants' submissions, the Act operates by covering as many people as reasonably possible and by placing on them the onus of demonstrating that they should be allowed to work in child-related employment. Central to this is the wide definition of "conviction". The Act operates to prohibit from child-related employment, all persons known to have committed serious sex offences at any time in any place, no matter how minor, until they demonstrate that the Act should not apply to them.
27 It was not in issue that the definition of "prohibited person", prima facie, applied to the respondent, having regard to his conviction in 1971 and that, as such, the Child Protection (Prohibited Employment) Act would, prima facie, apply. In response to the respondent's contention that s 579 had the effect of rendering the conviction without legal effect, given the passage of time as provided for by that provision, and as such could not result in a person subject to the benefit of s 579, being a "prohibited person" within the Child Protection (Prohibited Employment) Act, the appellants conceded both at first instance and on appeal that s 579 of the Crimes Act, applied to the respondent's conviction. However, the appellants contended that s 579 does not purport to annul, pardon or set aside a conviction with which it is concerned. It merely provides that those convictions may be disregarded. No legally enforceable right is created by the provision.
28 On the appellants' contentions, the two enactments cannot be given their full and unqualified operation. They are, so far as they apply to the respondent, inconsistent in terms. Parliament has expressly provided for such inconsistency in s 12(1) of the Child Protection (Prohibited Employment) Act, so as to ensure that that Act would prevail to the extent of any inconsistency with any other Act or law. Section 579 of the Crimes Act is such a law and, therefore, expressly contemplated by s 12(1). There is no need for a particular enactment to specifically refer to a previous enactment for it to exclude the operation of the previous enactment: Rose v Hvric (1963) 108 CLR 353 and Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 at 634.
29 The appellants contended that, apart from the plain and ordinary meaning of s 12, the "best guide" to Parliament's intention in the passage of the Child Protection (Prohibited Employment) Act was to look at the object and policy of the Act and its context. All the cardinal rules of statutory construction point to the same conclusion in this case. The literal and ordinary grammatical meaning of s 12 is one which results in the Child Protection (Prohibited Employment) Act overriding the operation of s 579 of the Crimes Act. Such a construction is one that would "promote the purpose or object of child protection" and accords with the broad and sweeping catch-all definitions provided for in the legislation - that is the context in which the definition of a "prohibited person" and the definition of "conviction" must be seen. The legislature has used clear words to pursue a clear policy. The protection of children afforded by the Child Protection (Prohibited Employment) Act is to be paramount to any other Act or law. The judge at first instance erred in failing to so find.
30 That aside, on the appellants' submissions, the "ordinary maxims of construction" would result in the Court coming to the same conclusion, and may be useful in reinforcing the strength of the appellants' primary contentions.
31 In that regard, the appellants highlighted that neither party was suggesting the later statute either expressly or impliedly repealed the earlier. The two statutes were not repugnant except in a limited respect. Section 579 of the Crimes Act still avails the respondent in all respects, other than in relation to the operation of the Child Protection (Prohibited Employment) Act. Applying maxims of construction (although not strictly necessary to do so) leads to the same result. Both of the Latinisms generalia specialibus non derogant and leges posteriores priores contrarias abrogant produce a construction of the statute which gives primacy to the Child Protection (Prohibited Employment) Act. The former maxim operates to favour the statute which has a specific subject matter over that which is general. Although ordinarily expressed in the sense that an earlier specific statute overrides a later general statute to the extent of any inconsistency, in this case the opposite applies - a later specific statute overrides the earlier general statute to the extent of the inconsistency. Further, it is submitted that applying the later maxim produces the same result. Thus it is unnecessary to choose between the two maxims, if it be necessary to apply them at all.
32 The appellants contended that the construction given by his Honour provides an absurd result. By making the Child Protection (Prohibited Employment) Act subject to s 579 of the Crimes Act, a person convicted of a "serious sex offence" and given a recognizance would not be subject to the Act, yet a person convicted of a relevant offence and given a greater or lesser penalty than recognizance would be subject to the Child Protection (Prohibited Employment) Act. Thus, a person sentenced in a way that does not invoke the terms of s 579, whether it be considered a less or more severe penalty than a recognizance, would be subject to the Act, while a range of offenders in the "middle" of the spectrum of punishment would not be subject to it. In short, it could not have been the intention of Parliament to include those offenders whose criminality warranted no penalty but exclude those whose criminality was more serious and warranted a recognizance. Parliament intended the legislation to operate over a wide class of offenders identified by nothing more than being the subject for a conviction of a "serious sex offence" as defined.
33 Finally, it was contended Hungerford J fell into error by embarking upon a "balancing" exercise (see [22] - [23] of his Honour's decision). It was not his Honour's role to engage in such an exercise. It was his Honour's obligation to interpret and apply the legislation so as to give effect to the purpose of the Act as identified by Parliament. In approaching the matter in this way, his Honour further erred by placing significant weight on the legislative policy behind the enactment of s 579 of the Crimes Act, without paying adequate regard to the more recent and specific policy considerations associated with the Child Protection (Prohibited Employment) Act. That statute draws no distinction between serious or trivial offences, nor does it draw a distinction between the time at which the offence was committed. In taking such matters into account, his Honour fell into error.
34 By finding that the "fairer and more convenient construction" of the Child Protection (Prohibited Employment) Act is to read the definition of conviction within the meaning of "prohibited person" as being "subject to" s 579 of the Crimes Act, his Honour was providing an interpretation plainly in contradiction of s 12 of the Child Protection (Prohibited Employment) Act and overlooked the absurd result that would flow from the judgment. The declaration and consequential orders should be set aside.
Submissions of the Respondent
35 The respondent submitted that Hungerford J was correct to interpret s 579 of the Crimes Act in light of the judgment of the Court of Criminal Appeal in R v Sales, as providing a right that accrued to the respondent with the passage of time. The appellants' interpretation of the Child Protection (Prohibited Employment) Act was said to be simplistic and erroneous as that Act does not merely operate in respect of a person convicted of a "serious sex offence". It can only apply to such a person who is in "child-related employment", defined as that which primarily involves direct unsupervised contact with children. Further, there are exceptions to the definition of "child-related employment", the effect of which is to remove some persons who may otherwise fall into the category of prohibited persons. The legislature has not sought to apply the Child Protection (Prohibited Employment) Act to all situations in which children are present in the workplace.
36 The respondent submits that the appellants incorrectly state the proper approach to statutory construction in claiming that the provisions of the Child Protection (Prohibited Employment) Act and s 579 of the Crimes Act are inconsistent because each provision produces a different result when applied independently of each other. The correct approach is not whether a different result is produced in operation, but whether the two may be read together without producing inconsistency.
37 It is further submitted that the appellants' claim that Parliament intended to give greater protection to children fails on two counts. First, Parliament could have expressly stated that it did not intend that s 579 apply to a conviction of the kind dealt with by the Child Protection (Prohibited Employment) Act. Second, the legislature has relied upon the criminal justice system to identify those persons to whom the Child Protection (Prohibited Employment) Act is applicable. The legislature has taken therefore, it is submitted, the system in its entirety, except as otherwise identified in the statute, and therefore to the extent that a person may claim a conviction no longer has currency, the only inference is that the legislature intended the Child Protection (Prohibited Employment) Act would not apply.
38 In respect of the appellants' submission that his Honour gave excessive weight to Parliament's intention when introducing s 579 into the Crimes Act, the respondent contends that his Honour was entirely correct in considering whether the enactment of the Child Protection (Prohibited Employment) Act had the effect of overriding s 579.
39 The respondent submits that the Child Protection (Prohibited Employment) Act does not apply to him as he is not a "prohibited person" in the terms of that Act. A prohibited person is a "person convicted of a serious sex offence", however, by reason of s 579 of the Crimes Act the respondent is entitled to disregard his conviction. Thus the respondent's conviction is no longer current and the restrictions imposed by the Child Protection (Prohibited Employment) Act do not apply to him.
40 The appellants are essentially contending that s 579 has been repealed by implication (whether in whole or in part) by the Child Protection (Prohibited Employment) Act. There has been no such repeal, as the provisions are able to operate together. Further, it is a presumption of statutory interpretation in such circumstances that the legislature was aware of the current law and did not intend to contradict itself.
41 The respondent submitted, as to the maxim generalia specialibus non derogant, that s 579 is not a general provision which might point to its repeal in the face of the specialist provisions of the Child Protection (Prohibited Employment) Act. The appellants' basis for this argument is said to be the possible application of s 579 to many people. The respondent contends that there is no merit in such a proposition and further, the Child Protection (Prohibited Employment) Act is more general in this respect as it affects a larger number of people.
42 Further, it is submitted that provisions which deal with the removal of rights are usually specific or particular in their terms and effect, these characteristics are not to be found in the Child Protection (Prohibited Employment) Act. The respondent refers to the submissions at first instance and the example of s 17 of the Criminal Records Act 1991 which expressly provides that it does not affect ss 274 and 275 of the Local Government Act 1993. It is submitted that examples of this kind demonstrate that either the legislature did not intend to remove s 579 rights or even if it did so intend, it did not achieve this result.
Leave to Appeal
43 An appeal from the decision of a Member of the Commission is made to a Full Bench and can only be brought upon leave to appeal being granted (see ss 187 and 188 of the Industrial Relations Act). Leave is to be granted where the Full Bench is of the opinion that the matters raised on appeal are of such importance as to warrant the grant of leave in the public interest. The principles as to the grant of leave to appeal are well settled and need no further elaboration in this case: see, for example, Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380.
44 The appellants submit that leave to appeal should be granted as the decision of his Honour is attended by considerable doubt and relates to a question of importance to the operation of relatively new legislation. Further, the decision below determined a question affecting many people and opportunities to consider the issue again may be limited since, if the decision is allowed to stand, persons in a similar situation to that of the respondent may rely upon the judgment of Hungerford J without approaching this Court for declaratory relief or a determination of their situation. Finally, it is submitted that it is in the public interest for the law to be authoritatively and correctly determined at an early stage.
45 Leave to appeal is opposed by the respondent on the basis that the decision at first instance is not attended by any error in reasoning nor in the application of principle. There is no basis for the appellants' claim that the decision will "affect many people". Further, the respondent contends that in assessing the public interest requirement for leave to appeal, it is appropriate to take into account the personal circumstances of the respondent. Specifically, it is appropriate for the Commission to have regard to the respondent's lack of involvement in the criminal justice system since the commission of this offence over 30 years ago. It is submitted that when coupled with the clear lack of error in the judgment of Hungerford J, this case was not one which would warrant the granting of leave to appeal.
46 The appeal raises important questions as to the operation and interaction of two important pieces of legislation; in particular, the breadth with which the reference to a "conviction" in the definition of a "prohibited person" in s 5 of the Child Protection (Prohibited Employment) Act is to be read, in light of s 579 of the Crimes Act. Any decision on appeal could have considerable ongoing significance for persons engaged in child-related employment as identified in s 3 of the Child Protection (Prohibited Employment) Act. This is readily clear from the fact of three relatively recent decisions in which reliance has been placed upon the decision challenged in this appeal: see Commissioner for Children and Young People v 'AG' [2002] NSWSC 582 (Dowd J), AG v Commission for Children and Young People [2001] NSWADT 163 and LL v Commission for Children and Young People [2001] NSWADT 174 (although the correctness of Hungerford J's judgment seems to have been doubted by Hennesey DP in the last mentioned decision). It is important, in light of some of the observations in those decisions, to recognise that this Court as presently constituted, as indeed was his Honour at first instance, is a superior Court of record (see s 152 of the Industrial Relations Act). We would agree with the appellants' contention that it is desirable, and in the public interest, that the construction of the relevant legislation be determined authoritatively. We also consider that in the circumstances of these proceedings, the nature of the Child Protection (Prohibited Employment) Act and the clear purpose to which is it directed, that is, the protection of children from potential harm, warrants the grant of leave in this case in the public interest. In any event, we are satisfied the appellants have demonstrated error in the reasoning of the trial judge. This is therefore an appropriate case in which leave to appeal should be granted.
Conclusions
47 Although we do not disagree with the description of s 579 as conferring a "right" upon a person that had been convicted of a serious sex offence, we do not agree with the conclusion at first instance as to the interaction between the Child Protection (Prohibited Employment) Act and the Crimes Act. That is, we do not accept that, by virtue of s 579 of the Crimes Act a person who has been convicted of a serious sex offence as defined, should in some way, have that conviction treated as though it was “no longer truly effective in any respect” or that “it should not, indeed cannot, be sufficiently active or operative to be a relevant conviction for the purposes” of the Child Protection (Prohibited Employment) Act. Such a construction does not pay sufficient regard to the broad and comprehensive nature of the Child Protection (Prohibited Employment) Act, the purpose to which the Act is directed or the context in which that legislation came into operation.
48 Section 579 of the Crimes Act is clearly beneficial legislation and as such should receive a broad construction. Neither party to the appeal took a different view. However, while his Honour's approach to the interaction between the two provisions is understandable, we consider the construction fails to adequately take into account the circumstances in which the Child Protection (Prohibited Employment) Act came to be enacted and in particular, the intention behind the enactment of the collection of cognate legislation in 1998 comprising the Child Protection (Prohibited Employment) Act, the Commission for Children and Young People Act and the Ombudsman Amendment (Child Protection and Community Services) Act.
49 His Honour's judgment, at paragraphs [21] - [24], usefully analyses the background to the enactment of the Child Protection (Prohibited Employment) Act, which includes the observations of the Minister in the second reading of the Bill which later became the Child Protection (Prohibited Employment) Act, where it was stated (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 sex 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. Sex 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.
50 The Child Protection (Prohibited Employment) Act forms "an integral part" of an "employment screening system" adopted by the Parliament as to persons wishing to join or stay in child-related employment. We would agree with Hungerford J’s observation that these three pieces of legislation were “historic and unique in their terms”, responding as they did to “key recommendations of the Wood royal commission paedophile inquiry” (see per Hungerford J at [21] by reference to Hansard, Legislative Assembly, 21 October 1998, p 8739).
51 It may be immediately observed that the cardinal rule in interpreting a statute is that “the purposes of the legislature must be ascertained from the language of the legislation which it enacts”: Byrnes v The Queen (1999) 199 CLR 1 at [80] per Kirby J, and that the relevant Ministerial speeches upon the passage of the proposed legislation through Parliament warrant "serious consideration". Such speeches, however, "cannot be determinative" as "the words of a Minister must not be substituted for the text of the law": Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 517 - 518 per Mason CJ, Wilson and Dawson JJ. However, such observations do not detract from the well settled approach to statutory construction, as now expressly recognised in s 33 of the New South Wales Interpretation Act, that it is the purpose of the legislation which must be identified and promoted when interpreting the operation of a statute. As McHugh J observed in Corporate Affairs Commission v Yuill at 346 "the ascertainment of the ordinary grammatical reading of the legislative provision in question" is merely the "first step in the process of statutory construction". As his Honour went on to recognise the very object of the process of statutory construction is to afford the legislation "the meaning which Parliament intended".
52 To turn more specifically to the legislative direction which binds this Court, s 33 of the Interpretation Act provides, that in the interpretation of a provision of a statute:
"...a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made), shall be preferred to a construction that would not promote that purpose or object."
53 As Dawson J in his minority judgment in Mills v Meeking (1990) 169 CLR 214 recognised, "the intention of Parliament is somewhat of a fiction"; usually the difficulty when interpreting the operation of a statute arises "in ascertaining the intention of Parliament rather than in giving effect to it when it is known". The goal in interpreting a statute is to give effect to the intention of the Parliament “in the first instance, not merely after 'ambiguity' is identified”. However, ascertainment of meaning, intention and purpose is not a mechanical process ignorant of the realities and practice of English usage. As was observed by Mason J in K & S Lake City Freighters (at 315):
Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.
54 Also apposite to the issues in this appeal are the observations of Brennan CJ, Dawson, Toohey and Gummow JJ, in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 where it was stated:
Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy: Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.
55 It is the background to and the context in which the legislature enacted the Child Protection (Prohibited Employment) Act which, in our view, gives the answer to the question as to the way the two pieces of legislation interact. That is, the construction to be given to the Child Protection (Prohibited Employment) Act must best serve the purpose to which it is directed - the protection of children.
56 In the present case the words of the Minister upon the Bill's second reading are plainly in accord with the express terms of the Act. As the long title recognises, the purpose of the Act is "to prohibit the employment in child-related employment of persons found guilty of committing certain serious sex offences". As was observed by Hungerford J at first instance, there can be no doubt that as to the purpose to which the legislation was directed.
57 Both s 579 of the Crimes Act and the definition of a "prohibited person" in the Child Protection (Prohibited Employment) Act are clear on their face and have a clear legislative intent. Both seek to promote and achieve important social purposes. However, as was observed by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305:
[I]f the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107, at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.
58 A "prohibited person" is identified in s 5 of the Child Protection (Prohibited Employment) Act by reference to either one of two factors. That is, the person is “a person convicted of a serious sex offence”, it being immaterial whether the offence was committed “before or after the commencement of this subsection”, or secondly the person is “a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000”. (It may be observed that the Child Protection (Offenders Registration) Act 2000 was assented to on 27 June 2000 and, so far as the amendment to s 5 of the Child Protection (Prohibited Employment) Act is concerned, commenced operation on 15 September 2000, shortly after the Child Protection (Prohibited Employment) Act came into effect on 3 July 2000).
59 Of present importance, the term "conviction" is a term defined in s 3 of Child Protection (Prohibited Employment) Act to include "a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction". It is important not merely because of the very broad meaning thereby given to the term. It is also important for two additional reasons. First, it gives an operation to the Child Protection (Prohibited Employment) Act no less wide than that of s 579 (see the references in s 579(1) to both the "conviction of any person of an offence" and "a finding that a charge of an offence has been proven against any person"). Second, it makes plain that the precondition for the 1998 statute to operate is not the imposition of a penalty or sentence, or its severity or gravity, but the fact of the conviction (or of a finding of the proof of an offence) of the kind specified. Thus a person is, or becomes, a "prohibited person" under the first limb of s 5(1) of the 1998 statute once they are convicted (with that term given its extended meaning by the definition in s 3) of a specified offence (that is, a "serious sex offence" as defined) with s 5(1), by its terms, plainly stating that the time of conviction is immaterial. The first limb of s 5(1) requires only that a person has had a charge for a "serious sex offence" found proven against them.
60 The definition of "serious sex offence" is drawn in equally broad terms, and includes offences of attempting, conspiring or inciting, the commission of an offence " involving sexual activity or acts of indecency", wherever committed, provided the offence " was punishable by penal servitude or imprisonment for 12 months or more". The Act provides that a person identified as a "prohibited person" must not "apply", "undertake" or "remain" in child-related employment as defined, and that an employer must not "commence" or "continue" to employ someone so identified.
61 The definition of "employment" in the Act travels well beyond usual meanings of the word, and includes performance of work under a contract of employment, performance of work as a self-employed person or as a subcontractor, performance of work as a volunteer, undertaking practical training as part of an educational or vocational course or the performance of work as a minister of religion or other member of a religious organisation.
62 The only means of avoiding the effect and operation of the statute is for one of the nominated independent tribunals to be persuaded, and thus to determine that the "prohibited person" does not pose a risk to the safety of children pursuant to s 9(4), having had regard to the various considerations identified in s 9(5), and for the tribunal to exercise its discretion to make an order that the Act will not apply in a particular case (that is, to a particular person for a particular offence or for particular offences).
63 The Child Protection (Prohibited Employment) Act must be seen as an enactment comprehensive and all encompassing in its scope. The legislature has manifestly intended to cast its net as widely as possible. It has taken the rather exceptional or unusual course of identifying a specific class of persons, identified and identifiable by means of a particular feature (past criminal conduct as dealt with by a Court) and encumbered them (subject to a limited phasing in of the operation of the relevant provisions), with a prohibition from taking part or continuing in "child-related employment". No opportunity of being heard was afforded to any person subject to the statute's prohibition. The prohibition is to apply unless and until an individual the subject of the statutorily imposed prohibition has obtained an interim or final order from one of the nominated tribunals, “declaring that this Act is not to apply to the person in respect of a specified offence”, on either an interim or permanent basis.
64 The legislature has taken the view that without legislation of this exceptional and all encompassing nature, the social evils to which the statute is directed would not be effectively remedied or ameliorated. Although it is unusual for an approach of this kind to be adopted (that is, legislation by reference to a class of persons, without affording any of them, the opportunity to be heard or notification being given to any member of the class) in light of the significant mischief to which the legislation is directed, the unusual and exceptional has been adopted by the legislature notwithstanding that rights might be affected and apparent hardship could occur.
65 There are at least two considerations clearly discernable in the approach adopted by the legislature. First, the potential risk of harm to children from persons who have been convicted of a serious sex offence (or having been adjudged guilty were not the subject of a conviction) was such that they could only work in child-related employment if an independent tribunal removed the prima facie prohibition upon child-related employment, being satisfied the relevant statutory criteria were made out; and, second, to the extent that the scope of the legislation might lead or be seen to lead to anomalies or unfairness there would be, as the sole remedy, recourse to an independent tribunal.
66 Plainly, by conditioning the identification of prohibited persons by reference to the fact only of a "conviction" (as broadly defined), the legislature has intended to cast its net as widely as was available. This is socially significant and important legislation which must be given its widest reading and operation.
67 Also relevant to the construction of the Act is the specific mechanism in s 9 which enables a prohibited person to seek to overcome the operation of the Act. It is by affording a person convicted of a serious sex offence this avenue to overcome the operation of the Act that the legislature has endeavoured to ensure the "balance" between the interests of prohibited persons currently, or in the future, engaged in child-related employment and the social concerns and sensitivities surrounding the protection of children from sexual offenders. The specific mechanism available permits application to be made to an independent tribunal for review. That tribunal is afforded wide discretion to decide matters in the public interest, and in this context, the public interest and particular sensitivities associated with the protection of children. This is the balance referred to in the various parliamentary debates to which Hungerford J referred.
68 Once the background, scope, purposes and intention of the legislation is seen in this way, a question arises as to the applicability of normal approaches to statutory construction, in the context of this legislation. In our view, the extraordinary nature of the legislation is such that it was intended to override any earlier legislation which might, prima facie, appear to be in conflict. This intention is made express in s 12(1). In this context, the breadth with which s 12(1) is drawn takes on considerable significance. That provision is drawn in the broadest possible terms, providing that “this Act prevails to the extent of any inconsistency between it and any other Act or law” (emphasis added). Whilst that provision, of itself, as was recognised by Hungerford J, might not have been sufficient to have the widest possible effect in the absence of the comprehensive, all encompassing scheme we have identified, once it is seen in context, there can be no doubt that it was intended to be an express recognition of the paramountcy with which this unique legislation was to be interpreted.
69 Whilst this construction may appear to create some degree of hardship or unfairness, the Act itself provides a means of ameliorating this effect to the extent provided by Parliament. First, it provided an "amnesty" of a number of months (dependant upon the particular obligation), in which appropriate steps by way of application could be taken so as to avoid the commission of an offence by employment contrary to the Act. Second, the Act in s 9 expressly provided a means of permanently negating its operation by the making of an appropriate application to an independent tribunal. The Child Protection (Prohibited Employment) Act does not provide an absolute bar to a person who falls within the definition of "prohibited person" from ever working in child-related employment. The practical effect of the system is that a person convicted of such a charge is required to establish, by application to an independent tribunal, the matters set out in s 9 of the statute. That is, in substance, that the applicant no longer poses a risk to the safety of children.
70 His Honour was correct in observing that the purpose of the Child Protection (Prohibited Employment) Act was to "to protect children against possible harm unless a relevant tribunal finds that the person concerned does not, according to specified criteria, pose a risk to the safety of children". However, when the legislative purpose is seen in that way, it would not appear to give appropriate recognition to the intention of the legislature to construe the term "conviction" in the way which occurred at first instance. There is, as we have observed, a direct inconsistency in the operation of s 579 of the Crimes Act and the identification of a "prohibited person" in s 5 of the Child Protection (Prohibited Employment) Act by reference simply to a person having been convicted of a serious sex offence. The Child Protection (Prohibited Employment) Act is to be paramount.
71 That construction of the Child Protection (Prohibited Employment) Act would appear, given the particular concerns to which the legislation is directed, to give effect to the obvious legislative intention. The legislature has seen fit to place the requisite onus upon persons who have been convicted of a serious sex offence, to demonstrate why they should no longer be considered a danger to children if they are, or seek to be, engaged in child-related work. The difficulties and expense which may be associated with making such an application are not to be minimised. It is, however, clear that a person who has not transgressed in the 15 years since the relevant recognizance period has expired, is entitled to have that circumstance taken into account in the consideration whether they any longer pose a threat or danger to children.
Orders
72 The appeal should be allowed. The Court makes the following orders:
1. Leave to appeal granted;
2. Appeal upheld;
3. Declaration made by Hungerford J set aside;
4. Leave is granted to the parties to make application for orders as to costs (including, if appropriate, orders under the Suitors' Fund Act 1951) provided the leave is exercised within 28 days.
73 Finally, it is noted that the order made by Hungerford J pursuant to s 9(6) of the Child Protection (Prohibited Employment) Act staying, on an interim basis, the operation of the statutory prohibition (see paragraph [5] of his Honour's judgment) remains in force. The application for final orders pursuant to s 9 of that statute has been allocated to Kavanagh J who will shortly list the proceedings for directions as to their final disposition.
_______________________
LAST UPDATED: 10/02/2003
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/nsw/NSWIRComm/2003/6.html