AX -v- Commission for Children and Young People [2002] NSWADT 247

CITATION: AX -v- Commission for Children and Young People [2002] NSWADT 247 DIVISION: Community Services Division APPLICANT PARTIES: AX RESPONDENT Commission for Children and Young People FILE NUMBER: 014071 HEARING DATES: 05/09/2002 SUBMISSIONS CLOSED: 09/05/2002 DATE OF DECISION: 11/27/2002

BEFORE: Gelin B - Member APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principla matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT I Bourke, barrister ORDERS: 1. Application dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the Act) is not to apply to Mr AX is respect of the offence of assault with act of indecency which occurred on 10 April 1997 and for which he was convicted in New South Wales on 12 June 1997. Under s 9(6) of the Act, the Tribunal stayed the operation of a prohibition under the Act on 31 January 2002, subject to conditions, pending further determination by the Tribunal. The hearing of the application for a declaration was conducted on 9 August 2002 and concluded on 5 September 2002. 2 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).) 3 Although s 126(s) 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 AX". The official copy of the orders provided to the parties includes the name of the applicant. 4 Mr AX is applying for a declaration that the Act does not apply to him, because he wants to apply for a position as a mathematics teacher in high school or the TAFE system. LEGISLATIVE PROVISIONS 5 In summary, the Act makes it an offence for people convicted of "serious sex offences" to apply for or undertake "child related employment." The Act also makes it an offence for employers to do certain things in relation to a person convicted of such an offence. However, the Tribunal can make a declaration that the Act is not to apply to a person in relation to a specified offence. Further details are set out below. 6 Subject to certain defences and transitional provisions, the Act makes it an offence for a person convicted of a "serious sex offence" (as defined in s 5(3)) from applying for, undertaking or remaining in child-related employment. Section 6(1) states that: A prohibited person must not: (a) apply for child related employment, or (b) undertake child-related employment, or (c) remain in child-related employment. Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both. (2) Defence It is a defence to a prosecution for an offence against this section if the defendant establishes that he or she did not know, at the time of the commission of the offence, that the employment concerned was child-related employment. 7 A "prohibited person" is defined in s 5 of the Act. That section states that: (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.... (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. 8 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) as follows: