CITATION: HL v Commission for Children and Young People [2008] NSWADT 323 DIVISION: Community Services Division APPLICANT HL PARTIES: RESPONDENT Commission for Children and Young People FILE NUMBER: 084017 HEARING DATES: 16 September 2008 SUBMISSIONS CLOSED: 16 September 2008 DATE OF DECISION: 4 December 2008 BEFORE: Smyth M - Judicial Member CATCHWORDS: Declaration Prohibited Employment Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Commission for Children and Young People Act 1998 RV v Commission for Children and Young People [2007] NSWADT 299 CASES CITED: Commission for Children and Young People v V (2003) 56 NSWLR 476 Commission for Children & Young People v UR [2007] NSWSC 1099) APPLICANT In Person REPRESENTATION: RESPONDENT G De Courcey, solicitor ORDERS: The application is dismissed The Applicant may make another application under section 33H or section 33I of the Commission for Children and Young People Act 1998 in respect of the offence of indecent assault for which he was found guilty in the Victorian Magistrates Court on 3 April 2006 at any time following this decision. REASONS FOR 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, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (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 The Applicant applies for a declaration under s 33I of the Commission for Children and Young People Act 1998 (the Commission Act). The Applicant appeared for himself by phone. The Respondent opposed the application. 2 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. As the matter is sensitive I have decided not to publish any details that may identify the Applicant or others referred to in the proceedings The Applicant is referred to in these reasons by the pseudonym HL. 3 The Applicant was found guilty of indecent assault [section 39(1) of the Crimes Act 1958 (Vic)] by a Magistrates Court on 3 April 2006. That offence carries a maximum sentence of 10 years imprisonment. The Applicant was released without conviction on an undertaking to be of good behaviour for 12 months. 4 The Applicant is a teacher and wants to work in NSW so that it is easier for him to see his son. He is separated from his partner and has access to his son every third weekend and for half of the school holidays. At present the Applicant relies on Centrelink payments and works on a casual relief basis for his income. Is the Applicant a prohibited person? 5 The definition of a prohibited person in section 33B(1)(a) of the Commission Act includes a person convicted of a serious sexual offence. 6 Section 33B(3) of the Commission Act defines a serious sexual offence to include: (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, 7 The following note appears at the end of section 33B(3) and before sections 33B(4) and (5). Note. A conviction for an offence includes a finding that an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction. 8 The Respondent submitted that the Applicant was a prohibited person on the basis that an offence of indecent assault under section 39(1) of the Crimes Act 1958 (Vic) came within the definition of a serious sex offence set out in section 33 B(3) of the Commission Act. 9 It is not in dispute that the Applicant was found guilty of an offence of indecent assault in Victoria, although the Court did not proceed to record a conviction. The equivalent provision of indecent assault under the Crimes Act 1900 (NSW) is section 61L and that carries a penalty of 5 years imprisonment. That section states: Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years. 10 Even if the Applicant's offence was characterised as an act of indecency towards a person 16 years or above under section 61N(2) of the Crimes Act 1900 (NSW)], that offence carries a penalty of 18 months. 11 I am satisfied that the Applicant was found guilty of an offence of indecent assault and that this offence involved sexual activity or an act of indecency that would have been punishable by imprisonment for 12 months or more if committed in NSW. 12 Where section 33B(1)(a) states "a person convicted of a serious sexual offence…." the effect of that note is that the legislature intended that the term "convicted" would apply to an instance such as this case where the Applicant has been found guilty of an offence and the Court did not proceed to record a conviction. I am satisfied that the Applicant is a person convicted of a serious sexual offence and is a prohibited person [section 33B(1)(a) of the Commission Act]. Other relevant statutory provisions 13 Section 33J(1) of the Commission Act provides that the Tribunal is not to make an order on a review application unless satisfied that the person the subject of the application does not pose a risk to the safety of children. Section 33J(2) requires the Tribunal to presume that the Applicant poses a risk to the safety of children, unless he or she proves the contrary. The Applicant carries the onus, on the Briginshaw standard, to rebut that presumption. 14 The factors that the Tribunal must take into account in deciding whether or not to make an order are set out in section 33J(3) as follows. (a) the seriousness of the offences with respect to which the person is a prohibited person, (b) the period of time since those offences were committed, (c) the age of the person at the time those offences were committed, (d) the age of each victim of the offences at the time they were committed, (e) the difference in age between the prohibited person and each such victim, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the prohibited person's present age, (h) the seriousness of the prohibited person's total criminal record, (i) such other matters as the Commission or tribunal considers relevant. 15 The paramount consideration is the safety and welfare of children and, in particular, protecting them from child abuse. [Section 32]. 16 The test set out in section 33J(1) of the Commission Act is similar, but not identical, to the corresponding test in the now repealed Child Protection (Prohibited Employment) Act 1998. 17 In RV v Commission for Children and Young People [2007] NSWADT 299 this Tribunal, differently constituted, considered the application of legal principles developed regarding section 9(4) of the 1998 Act to applications made under section 33. The Tribunal referred to the consideration of the meaning of risk used in that section in the cases of Commission for Children and Young People v V (2003) 56 NSWLR 476 and Commission for Children & Young People v UR [2007] NSWSC 1099). 18 In RV v Commission for Children and Young People the Tribunal said that great care had to be taken in applying principles that had been developed in relation to different, although similar, legislation. That Tribunal concluded that previous authorities that had considered section 9(4) of the now repealed Act provide useful assistance to interpreting corresponding provisions in the Commission Act. I agree with that approach. 19 In RV v Commission for Children and Young People the Tribunal referred to Young CJ (in Equity) in Commission for Children and Young People v V. In that case Young CJ agreed with Haylen J's analysis in R v Commission for Children and Young People [2002] NSWIR Comm 101. 20 Haylen J said that section 9(4) referred to: '[N]ot a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.' ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].) 21 Young CJ held [at 27] that 'risk' in the context of section 9(4) meant 'a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child'. 22 The previous Act included the power to make conditions [section 9(9)]. Young CJ made it clear that the power to impose conditions was relevant to the question of risk. The imposition of relevant conditions could mean that an Applicant may not pose a real and appreciable risk to children. 23 I now turn to the factors set out in section 33J(3) of the Act that the Tribunal is required to take into account. Seriousness of offence with respect to which the Applicant is a prohibited person and the period of time since that offence was committed. [Section 33J(3)(a) and (b)] 24 The Tribunal had in evidence the material produced by the Magistrates Court of Victoria. The material recorded the charge and the outcome of the matter however there were no documents before the Tribunal such as a statement of facts that set out what the offence involved. The Applicant's evidence was that he and the victim were both teachers at a school. The offence occurred in the staff room of the school at the end of the school day when the pupils had left school. The Applicant tickled the victim's genitals from behind as the victim was reaching up to get something from his pigeon hole. As stated above, the Applicant was released without conviction on an undertaking to be of good behaviour for a year. 25 The offence occurred in July 2005 a little over three years ago. Age of the person at the time that offence was committed and present age. [Section 33J(3)(c) and (g)] 26 The Applicant was 55 years old at the time of the offence and is now 58 years old. Age of each victim of the offences [Section 33J(3)(d)] 27 The victim was 62 years old. Difference in age between the prohibited person and each such victim; Whether the person knew, or could reasonably have known, that the victim was a child, [Section 33J(3)(e) and (f)] 28 The victim was approximately 7 years older than the Applicant and was not a child. Seriousness of the prohibited person's total criminal record, [Section 33J(3)(h)] 29 The Applicant had a previous offence of operating a vessel without specified equipment in 2000. No conviction was recorded and he was fined $150. The Applicant has no other matters on his criminal record. Other relevant matters [Section 33J(3)(i)] 30 The Applicant's evidence was that the indecent assault was a joke gone wrong and that others had also engaged in that kind of behaviour. He told the Tribunal that he deeply regretted his conduct and had apologised on a number of occasions. 31 The Applicant told the Tribunal that the Department of Education in Victoria had issued him a warning letter over the indecent assault incident and had allowed him to continue teaching in Victoria. The Applicant had a long career as a teacher and had taught in NSW from 1979 to 1999. He had taught more recently in Victoria. He told the Tribunal that he had never had any issue raised with him regarding his conduct towards children and young people. 32 A letter from the Department of Education and Training in Victoria dated 16 October 2007 to a school principal in evidence before the Tribunal stated that, based on information supplied by the Applicant, there were no disclosable criminal outcomes which would impact on his employment as a teacher and on that basis he could be employed in Victorian government schools. 33 There was no expert evidence regarding any risk the Applicant posed to the safety of children before the Tribunal. The Applicant told the Tribunal that he refused the Respondent's request to undergo a risk assessment by an expert psychologist or psychiatrist on the basis that he did not see the relevance of it. He did not place any expert evidence of his own before the Tribunal. 34 The Respondent made a number of enquiries about the Applicant. The Applicant has no criminal record in NSW. There was a police intelligence report in evidence before the Tribunal. That report dated 13 May 2004 contained allegations that the Applicant's ex-partner had contacted police to report that the Applicant had threatened to come around and slit her throat and take the child away. He had also threatened her new boyfriend. His ex-partner was reported to have told police that she had contacted the Applicant by phone to discuss custody arrangements for their child. The threats were made in the course of an argument between them during the phone call. The Applicant was also alleged to have parked his caravan outside her house about two weeks prior to the incident. The Applicant was taken to a police station but later released and agreed to move his caravan. Although his partner had said she intended to apply for an apprehended violence order she informed police that she no longer wanted an order as she and the Applicant had attended mediation and it had gone well. 35 The Applicant acknowledged that he had spoken to his partner at that time. He acknowledged that he was angry but denied making any threats. He contended that the allegations of threats were just that, allegations and said that the police had not charged him with any offence. He had moved his caravan and the matter had been resolved by mediation. He further alleged that he had been assaulted by his ex-partner's boyfriend twice. 36 The Applicant told the Tribunal that there were ongoing personal difficulties between him and his ex-partner and that there had been a long history of conflict regarding access to the child and custody. He said that all he had wanted was to have reasonable access to his son and that at present he travels 1300 kms to see him. He stated that the custody issues had been resolved by Family Court orders and that once the orders were in place his partner had started to comply with them. 37 The Department of Community Services had received a risk of harm report in April 2005 relating to the Applicant's child. The reporter said that the Applicant had telephoned the child's mother and an argument ensued. The Applicant was alleged to have said "I'm sick of this I'm going through the courts and I'll get custody of (the child)". The caller had said that the Applicant had threatened to cut the mother's neck in previous conversations. The report was unallocated and was closed. The Department of Community Services had no other records relating to him and his children. Discussion and Conclusion 38 There is a rebuttable presumption that the Applicant poses a risk to the safety of children [section 33J(2) of the Commission Act] and the onus is on the Applicant to prove that he does not pose such a risk. In determining whether to grant the application I must have regard to the factors listed in section 33J(3). 39 The Applicant acknowledges that the offence of indecent assault occurred. He told the Tribunal that he regretted the incident and had apologised to his victim. He maintained that it was a joke that went wrong. The offence is not at the serious end of the spectrum of sexual offences and that is demonstrated by the nature of the sentence imposed on the Applicant, a bond and no conviction recorded. The only other matter on his criminal record is a minor matter regarding the operation of a vessel. That offence has no relevance to the question of whether the Applicant poses a real and appreciable risk to the safety of children. 40 The victim of the indecent assault was not a child. He was a male colleague in his sixties who was older than the Applicant. 41 In regard to the report to child welfare that he told his ex-partner that he intended to go through the courts to gain custody of his child, that is consistent with the Applicant's statement that he did take action in the Family Court and obtain orders giving him access to his child. There is nothing adverse to the Applicant in his pursuing a legal claim through the courts to gain access or custody of his child. 42 While I accept the evidence that a complaint was made to police on 13 May 2004 by the Applicant's ex-partner alleging the Applicant had threatened her and her boyfriend there is no evidence to corroborate that the threats were actually made. The police were involved and did not charge the Applicant with any offence, indeed they released him and on the police account the dispute went to mediation. His ex-partner decided not to pursue an application for an apprehended violence order on the basis that the mediation "went well". While the Applicant denied making the threats alleged, he acknowledged that he was angry and that he and his ex partner argued. I accept the Applicant's evidence that an argument took place with his ex-partner in the context of difficult personal circumstances and a dispute regarding custody of the child. There is insufficient evidence for me to be satisfied that he threatened his partner or her boyfriend in the terms alleged. 43 Of concern is that the offence of indecent assault is relatively recent, committed when the Applicant was a mature man in his fifties and that he would engage in such conduct on school premises, albeit on the Applicant's account in the staff room after the pupils had left. 44 The Tribunal had no evidence regarding the detail of the offence other than the Applicant's account. Court documents obtained by the respondent did not include a statement of facts or other material that provided more detail. 45 The Applicant provided the Tribunal with very little evidence other than his application and oral evidence. The Applicant has worked as a teacher since 1972. While there is no evidence before the Tribunal to contradict the Applicant's claim that he has never had any issue raised with him regarding his conduct towards children and young people or harmed a child there is no evidence to corroborate his claim. For example, the Applicant did not put forward any references or statements from school principals or others that had supervised his work as a teacher. Similarly there is no evidence from those who may have observed his interactions with children and young people. 46 The Tribunal has not had the benefit of any expert evidence from a psychologist or psychiatrist with expertise in assessing the risk posed to the safety of children. The Applicant did not obtain any such evidence of his own and refused the Respondent's request that he undertake such an assessment. 47 The Commission Act makes it very clear that the safety and welfare of children, and protecting them from child abuse is the paramount consideration. In this instance there is insufficient evidence to satisfy me that the Applicant has rebutted the presumption that he poses a real and appreciable risk to children. 48 I now need to consider whether conditions could be imposed that would reduce his risk to one below "real and appreciable". The Applicant wants to work as a teacher. Given the stage of his career he did not consider that a condition requiring a probationary period or some form of additional supervision of him would be appropriate. There is also no evidence as to whether any prospective employer could accommodate such conditions. In these circumstances I do not consider that conditions could be imposed that would lift him above that risk. 49 Where a Tribunal refuses an application for an order under section 33I of the Commission Act an Applicant is precluded from making another application under section 33H or section 33I of that Act for five years unless the Tribunal orders otherwise at the time of the refusal [section 33I(5)]. In this instance the Applicant was unrepresented and did not appear to have had the benefit of legal assistance in preparing his case. It may be that with better evidence, for example expert evidence as to whether the Applicant poses a real and appreciable risk to the safety of children from a psychologist or psychiatrist with expertise in that area together with evidence from those who have been able to observe his teaching and interaction with children and young people that the Applicant could rebut the presumption that he poses a risk to the safety of children. For that reason I have decided to exercise the discretion under section 33I so that the Applicant can make another application under section 33H or section 33I at any time following this decision to refuse his application. That will enable the Applicant to make a further application supported by more evidence should he wish to do so. Order The application is dismissed. The Applicant may make another application under section 33H or section 33I of the Commission for Children and Young People Act 1998 in respect of the offence of indecent assault for which he was found guilty in the Victorian Magistrates Court on 3 April 2006 at any time following this decision. 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.