CITATION: W -v- Commission for Children & Young People [2001] NSWADT 122 DIVISION: Community Services Division APPLICANT W PARTIES: RESPONDENT Commission for Children & Young People FILE NUMBER: 014014 HEARING DATES: 06/07/2001 SUBMISSIONS CLOSED: 07/06/2001 DATE OF DECISION: 07/26/2001 BEFORE: Gormly P - Judicial Member APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 CASES CITED: 'A' -v- Commissioner, New South Wales Commission for Children and Young People (2000) NSWADT 151 'V' -v- NSW Commissioner for Children and Young People (2001) NSWADT 96 APPLICANT REPRESENTATION: I McLachlan, barrister RESPONDENT M Adofaci, advocate ORDERS: (1) An order declaring that the Child Protection (Prohibited Employment)Act 1998 does not apply to Mr W in respect of the offence of "carnal knowledge" of which he was convicted 30 September 1964; (2) This order is not subject to any conditions. Pursuant to s9(10) the Tribunal will notify the Commissioner of Police of the terms of this order. Introduction 1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 ( the Act ) not apply to Mr W in respect of the offence of carnal knowledge for which he was convicted on 30 September 1964 at Liverpool Children's Court. 2 Mr W is now 51 years old and has always driven buses, coaches and trucks during his working life. He currently drives a bus in his home town. The Applicant says in evidence that this is the only coach company in his home town. This bus is predominantly used by school children. He would also like to obtain some coach work from his current employer. 3 S6(1) of the Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment. 4 On 12 March 2001 the Tribunal stayed the operation of a prohibition under the Act pursuant to s9(6) of the CP(PE) Act pending further determination of the Tribunal. The stay was made on condition that Mr W not seek any "child related employment" within the meaning of that phrase used by the Act in a paid or voluntary capacity, apart from his employer, and a copy of the orders be served on the General Manager of the coach company. Legislative provisions 5 Subject to certain defences and transitional provisions s6(1) of the Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment 6 The terms "prohibited person" and " serious sex offence" are defined in s5 of the Act. The term "conviction" is defined in s3 of the Act. Mr McLachlan for the Applicant submitted that as the Applicant was a child at the time of the 1964 offences and had admitted committing them, orders would have been made without proceeding to a formal conviction. Although this submission was not pushed, I will address it for clarity 7 Mr McLachlan helpfully provided me with a copy of 'A' -v- Commissioner, New South Wales Commission for Children and Young People (2000) NSWADT 151 (2 November 2000). Mr A was a child at the time of the offence which brought him under the Act and he had admitted to that offence. This case dealt with the issues of whether Mr A had been "convicted" of a "serious sex offence" within the meaning of the Act. There is no need to repeat the argument here suffice to say I concur with the Tribunal on each of those issues. When determining whether an offence is a "serious sex offence" it is appropriate to look at that offence in it's objective form rather than how it applies to the individual. The Act has a broad interpretation of conviction which is defined in s3 as including "A finding that the charge for an offence is proven even though the Court does not proceed with a conviction." For the purposes of this Act, I find that Mr W has been "convicted "of a "serious sex offence" 8 The Administrative Decisions Tribunal has jurisdiction to make an order pursuant to s9 of the Act that a person is not a prohibited person with respect to an offence. 9 s9(4)of the Act says 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. It was submitted by the Respondent that " the risk" referred to in this section can only be treated as relative rather than absolute. That the treatment of this term as an absolute would render this Part of the Act useless. I agree and adopt that interpretation. 10 S9(5) says 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 Evidence 11 The documentary evidence in this matter included: (1) Mr W's application to the Tribunal (2) Bundle of 6 references tendered without objection by the Applicant. It is noted that none of these references show that the writers had any knowledge of the procedure before the Tribunal. (3) Affidavit sworn 9 March 2001 . The Applicants Solicitor and a parent of children who would be exposed to the Applicant in his capacity as bus driver. (4) Letter from the Applicant's accountant dated 3 March 2001 (5) Affidavit of the Applicant sworn 9 March 2001. (6) Applicant's NSW Criminal record (7) Two reports of Dr Lennings dated 28 June 2001 and 4 July 2001 12 Mr W is 51 years old. He has bee married to his current wife for three years and in a relationship with her for 2 years before that. His wife was present at the hearing. There are no children to this relationship. He is currently working for the coach company on a part time basis. He drives buses but hopes to drive coaches for this company. His current employer knows of this matter and has supplied a positive reference for the applicant. 13 The Applicant has been married twice before. He told the tribunal that he has three sons. Two of whom he has regular phone contact with however no contact with the youngest son. 14 The Tribunal on the whole found the Applicant an honest witness. He displayed signs of embarrassment and remorse over certain matters which occurred when he was younger. I do note however that the exception to this is the 1971 incident which I have dealt with later in this judgment. 15 The NSW police record showed no offences of any sort since 1987. There were three sex related incidences which resulted in them being included on his criminal record. These occurred in 1964, 1971 and 1981. His record also included numerous driving/DUI offences. 16 The Applicant confirmed under oath that he had always lived and worked in NSW and that he had no charges, convictions warnings or any other related matter in any jurisdiction outside NSW. 17 The 1964 offence which is the conviction which brought Mr W within this Act occurred when the Applicant was 14 years old and the two girls were 13 years old. A group of boys and girls wagged school and went down to the river. By consent the Applicant had sex with two girls. The school found the party of children and laid charges. 18 Dr Lennings was contracted by the Respondent to prepare a report. The Applicant had informed Dr Lennings about each offence. However as a result of a combination of very little evidence and the applicants failure to take responsibility for the incident in 1971, when Dr Lennings was provided with more detailed evidence of the incident he wrote the second report. 19 When cross examined on the 1971 incident the Applicant maintained he was in the wrong place at the wrong time. The Applicant was 21 at the time. He said he lived in a house where drugs and sex were readily available. 20 He initially claimed to have done nothing but was prepared to accept that he may have told the police in a contemporaneous statement that he had attempted intercourse with a girl under 16. He said he did not know she was that young though she maintained she had told him she was only thirteen. 21 It was the Tribunals summation that regarding the 1971 incident the witness was either deliberately lying or held the matter in such contempt that he considered it not worth remembering. He informed the Court that several boys had been charged in connection with the same thing. 22 Dr Lennings ( by conference call) clarified the effect the second report had on the results of the first. He maintained that the conclusion remained the same because the method of evaluation included alleged offences and the 1971 incident was already included in the calculation. 23 In the 28.6.2001 report Dr Lennings concluded: "I do not think there is sufficient evidence to propose Mr W as a risk to children greater than that of any other male person in the general population." 24 Dr Lennings also stated in the June report that: "It should be noted Mr W is not a child molester or a pedophile and has not been convicted of rape." 25 Ms Adofaci on behalf of the Commissioner, submitted that s9(4) of the Act was a threshold to the exercise of the Tribunals decision. Having established the threshold the Tribunal must then consider the matters in s 9(5).This question was addressed extensively by the Tribunal in 'V' -v- NSW Commissioner for Children and Young People (2001) NSWADT 96 Ms Hennessy with whom I agree says at paragraph 59: "The matters listed in s9(5) are all related to the question of whether an applicant poses a risk to the safety of children. It cannot have been the parliament's intention that the Tribunal would come to the view in relation to s9(4) without considering the matters set out in s 9(5)." 26 Section 9(5) the Act sets out factors which the Tribunal must take into account in exercising its discretion under s9(1). In Mr W's case the offence was carnal knowledge committed when he was 14 years old. The victims were 13 years old. In relation to Mr W's total criminal record, the three sex related matters are of most concern. The other driving and drinking offences whilst reflect his general character at the time are not relevant on their own when considering whether Mr W poses any risk to the safety of children. 27 Ms Adofaci for the Commissioner submitted that I should make an order subjected to certain conditions of which she provided the Tribunal of a copy. She submitted that the Commissioner does not object to the application if the conditions are made. However should the Tribunal refuse to make those conditions the application is objected to. 28 I am not convinced that the children in our society will benefit from any conditions on the employment of Mr W. I have come to this conclusion because I am satisfied on the basis of the evidence and reasoning set out above that the Applicant poses no threat to children generally or to certain types of children.29 The Tribunal makes the following orders: (1) An order declaring that the Child Protection (Prohibited Employment)Act 1998 does not apply to Mr W in respect of the offence of "carnal knowledge" of which he was convicted 30 September 1964. (2) This order is not subject to any conditions. Pursuant to s9(10) the Tribunal will notify the Commissioner of Police of the terms of this order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.