A -v- Commissioner, New South Wales Commission for Children and Young People [2000] NSWADT 151

CITATION: A -v- Commissioner, New South Wales Commission for Children and Young People [2000] NSWADT 151 DIVISION: Community Services Division APPLICANT A PARTIES: RESPONDENT Commissioner, New South Wales Commission for Children and Young People FILE NUMBER: 004009 HEARING DATES: 11/10/2000 SUBMISSIONS CLOSED: 10/20/2000 DATE OF DECISION: 11/02/2000

BEFORE: Hennessy N (Deputy President); Brennan D - Member; Mason J - Member APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 CASES CITED: Pavlovic -v- Commissioner of Police [1999] NSWADT 117 Prevato v Miszalski (1986) 19 A Crim R 330 APPLICANT REPRESENTATION: In person RESPONDENT I Bourke, barrister ORDERS: An order declaring that the Child Protection (Prohibited Employment) Act 1998 does not apply to Mr A in respect of the offence of "Assault female under 16 years of age with an act of indecency" for which he was convicted on 13 January 1955.

Background 1 This is the first application to this Tribunal for an order under the Child Protection (Prohibited Employment) Act 1998 (the Act). The Act, which commenced on 3 July 2000, makes it an offence for a person who has been convicted of a serious sex offence to apply for, undertake, or remain in child related employment. It is also an offence for an employer to commence employing or continue to employ such a person in child related employment. (See s 6 and 8 of the Act.) 2 In these reasons we refer to the applicant as "Mr A". In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person to whom any proceedings before the Tribunal relate. (Administrative Decisions Tribunal Act 1997 s 126(1).) 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. 3 On 25 August 2000 Mr A filed an application with the Tribunal seeking a declaration that the Act should not apply to him in relation to the offence of indecent assault for which he was convicted in 1955. Without such a declaration, Mr A and his employer may have been committing an offence if Mr A remained employed as a driver transporting children with disabilities to and from school. 4 On 29 August 2000 the Tribunal stayed the operation of the Act pending the determination of the matter, on condition that an adult approved by his employer accompany Mr A at all times during working hours when he is in the company of children. Jurisdiction 5 Sub-sections 9(1) and 9(2) of the Act gives the Tribunal jurisdiction to make an order declaring that the Act is not to apply to a person in respect of a specified offence. Those sub-sections state that: (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. 6 The test that the Tribunal must apply when deciding whether to make such a declaration is set out in s 9(4) and s 9(5) of the 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, (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. 7 Pursuant to s 9(9), an order may be made subject to conditions. Issues 8 The questions which the Tribunal must ask itself in relation to these proceedings are: · has Mr A been "convicted" of a "serious sex offence" within the meaning of the Act? · is Mr A in "child-related" employment? · taking into account the factors set out in s 9(5), does Mr A pose a risk to the safety of children?