JD v Commission for Children and Young People [2008] NSWADT 345

CITATION: JD v Commission for Children and Young People [2008] NSWADT 345

DIVISION: Community Services Division

APPLICANT JD PARTIES: RESPONDENT Commission for Children and Young People

FILE NUMBER: 084026

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 23 October 2008

EXTEMPORE DECISION DATE: 23 October 2008 BEFORE: Britton A - Deputy President

CATCHWORDS: Jurisdiction

Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED : Child Protection (Offenders Registration) Act 2000 Firearms Act 1996 Freedom of Information Act 1989

CASES CITED: The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48

APPLICANT In person REPRESENTATION: RESPONDENT G De Courcey, solicitor

ORDERS: Application dismissed for want of jurisdiction.

REASONS FOR DECISION 1 The applicant, who in these reasons will be referred to as JD, has applied to the Administrative Decisions Tribunal for an order to correct the record of his criminal history as contained on the Child Protection Register. He makes this application for two reasons. He asserts that the information contained on the Register is incorrect and as a consequence he is wrongly categorised as a 'High Risk Offender' and subjected to unwarranted police scrutiny. In addition, he contends that on the basis of that categorisation he has been ordered by the Victims Compensation Tribunal to pay an excessive amount in restitution. According to JD, he has repeatedly raised this matter with the NSW Police and other authorities but the error has not been corrected. 2 JD's application was dismissed by the Tribunal on 23 October 2008 for want of jurisdiction and brief reasons were given for that decision. Subsequently JD made a request for written reasons. These reasons are in provided in response to that request. Scope of the Tribunal's powers 3 The statute establishing this Tribunal, the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), circumscribes its powers. The Tribunal has no power to inquire at large into matters that take its interest but over which it has no jurisdiction. The Tribunal must decline to hear such cases: The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48. 4 The Tribunal has the power to make original decisions and to review reviewable decisions: section 36 of the Tribunal Act. 5 Reviewable decisions are in most cases made by a government department or agency. Not all decisions made by those bodies are reviewable. The Tribunal can only review those decisions where a statute (or law) gives it the power to do so: section 37 of the Tribunal Act. The Tribunal, for example, can review a decision made by the Commissioner of Police not to release a document requested by a person because the Freedom of Information Act 1989 gives it the power to do so. Similarly, the Tribunal can review a decision made by the Commissioner to revoke a firearms licence because the Firearms Act 1996 gives it that power. However, the Tribunal does not have the power to review all decisions made by the Commissioner. For example, a decision to lay charges/to not lay charges is not reviewable by the Tribunal. 6 An original decision is a decision where the Tribunal is the primary decision-maker. A decision to make a declaration under the Commission for Children and Young People Act 1998 (Commission Act) in respect of a 'prohibited person' is an example of an 'original decision' (see below). As is the case with reviewable decisions, the Tribunal can only make an original decision if given the power to do so by statute. Tribunal's powers in respect of sex offenders 7 The Tribunal has power to make some decisions in respect of persons who have been convicted of certain sex offences. The Commission Act gives the Tribunal power to make various orders in respect of a 'prohibited person' that is, a person who has committed a 'serious sex offence' and as a consequence is not permitted to apply for, undertake or remain in 'child-related employment' (section 33C of the Commission Act). Where the Tribunal is satisfied that the prohibited person is a not a risk to the safety of children it can make an order that the Commission Act not apply to that person. 8 The Child Protection (Offenders Registration) Act 2000 requires the Commissioner of Police to establish a Child Protection Register: section 19(1). The Register must contain the name and address of all registrable persons. A registrable person is a person who has been sentenced in relation to a registrable offence which includes various sex offences where the victim is a child. The Act categorises those offences as Class 1 or Class 2 offences. Offences classified as Class 1 are more serious in nature than those classified as Class 2. 9 The Offenders Registration Act gives a registrable person rights in relation to the Register: 19B Registrable person's rights in relation to Child Protection Register (1) If asked to do so by a registrable person, the Commissioner of Police must provide the person with a copy of all the reportable information that is held in the Register in relation to the person. (2) The Commissioner of Police must comply with subsection (1) as soon as practicable after being asked to do so. (3) A registrable person may ask the Commissioner of Police to amend any reportable information held on the Register in relation to the person that is incorrect. (4) The Commissioner of Police must comply with such a request on being satisfied that the information is incorrect. (5) In this section: reportable information means any information supplied to the Commissioner of Police by, or on behalf of, the registrable person that the person is required to report to the Commissioner and that is still held in the Register. 10 As the above reveals, JD has a statutory right to ask the Commissioner of Police to amend any reportable information about him contained on the Register. Reportable information includes the registrable person's date of birth, address of each of the premises at which s/he generally resides; the names and ages of any children who generally reside in the same household as that in which s/he generally resides, or with whom s/he has regular unsupervised contact; and details of the person's employment (section 9 of the Offenders Registration Act). A person's criminal history is not reportable information. 11 On application by an eligible registrable person, the Tribunal may suspend the registrable person from compliance with reporting obligations: section 16 of the Offenders Registration Act. The Tribunal cannot do so unless it is satisfied that the person does not pose a risk to the safety of children: section 16(4). 12 Neither the Commission Act nor the Offenders Registration Act give the Tribunal the power to correct the record of a person's criminal history held by the NSW Police or the details of a person's criminal history contained on the Child Protection Register. Remedies available to JD 13 JD's application was made under the Commission Act. He seeks an order that the 'false and misleading information …submitted to justify excessive victims compensation amount…and the sex offender register' is corrected. 14 For the reasons given above, the Tribunal's powers under the Commission Act and Offenders Registration Act do not extend to amending the record held by the NSW Police of a person's criminal history. Accordingly, I do not have power to make the orders JD seeks. 15 I am not in a position to comment on whether, as JD claims, the record of his criminal history is inaccurate or whether he has made 'numerous attempts' to have it corrected. If his claims are correct it is my understanding that a number of options would be available to him. First, he could write to the court at which the alleged false conviction was entered, provide a copy of the documents he says prove that the record is incorrect and ask the court to amend its record and to forward the information to the NSW Police. Alternatively, he could write to the NSW Police and provide certified copies of his documents and ask that his record be corrected. 16 Alternatively, he could request the NSW Police to amend its records under section 39 of the Freedom of Information Act which provides that a person may apply for the amendment of an agency's records if, among other things, the 'information is, in the person's opinion, incomplete, incorrect, out of date or misleading'. If, after making that application JD was not satisfied with the action taken by the NSW Police, he could apply to the Tribunal under the Freedom of Information Act for review of that decision. Orders 1 Application dismissed for want of jurisdiction.