CITATION: DT -v- Commission for Children and Young People [2003] NSWADT 52 DIVISION: Community Services Division APPLICANT PARTIES: DT RESPONDENT Commission for Children and Young People FILE NUMBER: 024066 HEARING DATES: 12/11/02, 18/02/03 SUBMISSIONS CLOSED: 02/18/2003 DATE OF DECISION: 03/14/2003 BEFORE: 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: APPLICANT REPRESENTATION: In person RESPONDENT R McIlwaine, Solicitor ORDERS: Order made on 18/2/03. The Tribunal declares that the Child Protection (Prohibited Employment) Act 1998 is not to apply to the Applicant in respect of the two offences of carnal knowledge for which he was found guilty on 9 September 1958 at Ashfield Children's Court. REASONS FOR DECISION 1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the Act) is not to apply to Mr DT in respect of the two offences of carnal knowledge, which occurred in 1958, and for which he was convicted in the Ashfield Childrens Court on 9 September 1958. The hearing of the application for a declaration was conducted on 12 November 2002 (directions and stay granted) and concluded on 18 February 2003. 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 DT". The official copy of the orders provided to the parties includes the name of the applicant. 4 Mr DT is applying for a declaration that the Act does not apply to him, so that he can continue being a foster parent. The Department of Community Services supports his application. 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: (3) In this section: serious sex offence means (subject to subsections (4) and (5)): (a) an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or (b) an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales, or (b1) an offence under section 80D or 80E of the Crimes Act 1900, where the person against whom the offence is committed is a child, or (c) an offence under sections 91D - 91G of the Crimes Act 1900 (other than if committed by a child prostitute) or a similar offence under a law other than a law of New South Wales, or (d) an offence under section 578B or 578C (2A) of the Crimes Act 1900 or a similar offence under a law other than a law of New South Wales, or (e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs, or (f) any other offence, whether under the law of New South Wales or elsewhere, prescribed by regulations. (4) An offence that was a serious sex offence at the time of its commission is not serious sex offence for the purposes of this Act if the conduct constituting the offence has ceased to be an offence in New South Wales. (5) An offence involving sexual activity or an act of indecency is not a serious sex offence for the purposes of this Act if the conduct constituting the offence: (a) occurred in a public place, and (b) would not have constituted an offence in New South Wales if the place were not a public place. 9 Section 9 of the Act allows the Tribunal to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that section states 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. (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, (a1) the period of time since those offences were committed, (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, (d1) the prohibited person's present age, (e) the seriousness of the prohibited person's total criminal record, (f) such other matters as the tribunal considers relevant. (6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter. (7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order. (8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time or refusal. (9) Orders under this section may be made subject to conditions. (10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order. (11) The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs. (b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings. ISSUES 10 There are two questions to be answered before the Tribunal can determine whether a declaration should be granted. These questions are: (a) Is Mr DT a prohibited person within the meaning of that term in s 5 of the Act? (b) Does Mr DT pose a risk to the safety of children taking into account the provisions of s 9(5) of the Act? EVIDENCE 11 The documentary evidence in this matter includes (a) Mr DT's application to the tribunal; (b) A bundle of documents provided by the respondent relating to Mr DT's conviction, including material produced by the NSW Department of Community Services and by the NSW Attorney General's Department. 12 It is common ground that the relevant offences committed by Mr DT are serious sexual offences as defined by the Act, and that therefore Mr DT is a prohibited person: ss. 5(1) and 5(3)(a). 13 The evidence before the Tribunal shows that at the time the offences, the Appellant was 15 years old, and so was the victim, and there is no evidence that the sexual relations involved were other than consensual. 14 The only other criminal conviction on Mr DT's record is a charge of stealing traffic signs, 1963, Lithgow Local Court. REASONS FOR DECISION 15 Taking into account all the provisions of s. 9(5), the Tribunal considers that Mr DT does not pose a risk to safety of children: Though the offences are serious [s. 9(5)(a)], they were committed some 44 or 45 years ago [s. 9(5)(a1)] without any reoccurrence of such offences and without any other sexual offence or any offence involving violence to persons occurring since [s. 9(5)(e)]. Importantly, Mr DT was 15 when he committed those offences [s. 9(5)(b)] and the victim was of the same age [s. 9(5)(d)]. ORDERS 1. The Tribunal declares that the Child Protection (Prohibited Employment) Act 1998 is not to apply to the Applicant in respect of the two offences of carnal knowledge for which he was found guilty on 9 September 1958 at Ashfield Children's Court. 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.