P v Commisioner, New South Wales Commission for Children and Young People [2001] NSWADT 16

CITATION: P v Commisioner, New South Wales Commission for Children and Young People [2001] NSWADT 16 DIVISION: Community Services Division APPLICANT PARTIES: P RESPONDENT Commissioner, New South Wales Commission for Children and Young People FILE NUMBER: 014003 HEARING DATES: 17/01/01, 30/01/01 SUBMISSIONS CLOSED: 01/30/2001 DATE OF DECISION: 02/07/2001

BEFORE: Hennessy N (Deputy President); Rogan L - Member; Gelin B - Member APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 CASES CITED: M v Commissioner NSW Commissioner for Children and Young People (2000 ADT APPLICANT In person REPRESENTATION: RESPONDENT Commissioner, New South Wales Commission for Children and Young People ORDERS: Orders made 30 January 2001: 1. The Child Protection (Prohibited Employment) Act 1998 does not apply to P in respect of the offence of "carnal knowledge of a girl under 17 years" for which he was convicted on 18 September 1974 .

Introduction 1 In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. ( Administrative Decisions Tribunal Act 1997 s 126(1). 2 Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we have decided, because of the sensitivity of the information in this case, not to publish the applicant's name and to delete any other information which could lead to his identification. In these reasons we refer to the applicant as "Mr P" and to his first wife as "Mrs P." The official copy of the orders provided to the parties includes the name of the applicant. 3 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the CP(PE) Act) is not to apply to Mr P in respect of the offence of unlawful carnal knowledge of a girl under 17 years for which he was convicted in Queensland on 18 September 1974 and fined $50.00. Under s 9(6) of the CP(PE) Act, the Tribunal stayed the operation of a prohibition under the Act on 17 January 2001, pending further determination by the Tribunal. The hearing of the application for a declaration was conducted on 24 January 2001. Two tribunal members and Mr P were connected by phone to the hearing room. Following those proceedings, the matter was adjourned part heard in order for the Commissioner for Children and Young People (the Commissioner) to obtain further evidence in relation to the offence from various agencies in Queensland. No further evidence was able to be obtained by that date but the Tribunal obtained a Certificate of Indictment which confirmed the details of the offence and named Mrs P as the victim. 4 Mr P is applying for a declaration that the Act does not apply to him, because his second wife wants to operate a Family Day Care program in their home. Mr P told the Tribunal that the Department of Community Services has advised his wife that they will not grant her a licence to operate unless the Tribunal provides a declaration that Mr P is not a prohibited person under the Act. While the reason for Mr P's application is not relevant to the Tribunal's decision (and we have no independent evidence of any action by the Department of Community Services) it seems unnecessary for that Department to rely on any order from this Tribunal as a prerequisite to granting a licence to operate a Family Day Care program. 5 Leaving that issue to one side, the question for the Tribunal to determine is whether it should declare that the CP(PE) Act is not to apply to Mr P in respect of the offence of unlawful carnal knowledge for which he was convicted on 18 September 1974. The legislative provision relevant to the determination of that issue are set out below.