CITATION: DP v Commission for Children and Young People [2003] NSWADT 48 DIVISION: Community Services Division APPLICANT PARTIES: DP RESPONDENT Commission for Children and Young People FILE NUMBER: 024063 HEARING DATES: 19 November 2002 & 24 January 2003 SUBMISSIONS CLOSED: 01/24/2003 DATE OF DECISION: 03/10/2003 BEFORE: Gelin B - Member APPLICATION: Declaration that applicant not a prohibited person - Jurisdiction MATTER FOR DECISION: Jurisdiction Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900 CASES CITED: APPLICANT in person REPRESENTATION: RESPONDENT R Mcllwaine, solicitor ORDERS: Orders made on 24 January 2004; 1 The Tribunal has no jurisdiction The offence of which the Applicant was convicted (Deffilement of a girl under 17 years of age; 7.12. 81; Tasmania) is not a serious sexual offence as defined under the Child Protection ( Prohibited Employment) Act 1998, ss5(3)(b) & 5(4); 2 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 DP in respect of the offence of Defilement of a girl under 17 years of age, which occurred in 1981, and for which he was convicted in the Supreme Court of Tasmania, Hobart, on 7 December 1981. The hearing of the application for a declaration was conducted on 19 November 2002 (directions) and concluded on 24 January 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 DP". The official copy of the orders provided to the parties includes the name of the applicant. 4 Mr DP 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: (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 DP a prohibited person within the meaning of that term in s 5 of the Act? (b) Does Mr DP 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 DP's application to the tribunal; (b) A bundle of documents provided by the respondent relating to Mr DP's conviction, including material produced by Police Tasmania and by the Office of the Director of Public Prosecution, Tasmania. JURISDICTIONAL ISSUE 12 The sexual offence of which Mr DP was convicted involved sexual intercourse with a girl 16 years old, but under 17. Such conduct is proscribed (or was so proscribed in 1981) by section 124 of the Criminal Code of Tasmania. At the time this offence was committed, Mr DP was a teacher. The comments on sentence of His Honour Cosgrove J, and other documents tendered to the Supreme Court of Tasmania at the sentencing of the applicant, indicate that the sexual relations were consensual and that they did not arise as a result of or in the context of a pupil-teacher relationship. 13 Consensual sexual relations with a person over the age of 16 are not unlawful in New South Wales today, nor were they in 1981. Section 66C of the Crimes Act 1900 relevantly provides that: " 66C. Sexual intercourse – child between 10 and 16 (1) Any person who has sexual intercourse with another person who is of or above the age of 10 years, and under the age of 16 years, shall be liable to imprisonment for 8 years. (2) Any person who has sexual intercourse with another person who: (a) is of or above the age of 10 years, and under the age of 16 years, and (b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person, shall be liable to imprisonment for 10 years." Section 71 of the Crimes Act 1900 (in force as at May to June 1981) similarly provides that: "71. Whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of sixteen years, shall be liable to penal servitude for ten years." 14 It is an offence in New South Wales, and it was in 1981, for a teacher to have unlawful and carnal knowledge of a girl under the age of seventeen years if she was a pupil or daughter or step daughter. Section 73 of theCrimes Act 1900 relevantly provides that: "73. Carnal knowledge by teacher etc. Whosoever, being a schoolmaster or other teacher, or a father, or step-father, unlawfully and carnally knows any girl of or above the age of or above the age of 16 years, and under the age of 17 years, being his pupil, or daughter, or step-daughter, shall be liable to imprisonment for 8 years." Section 71C of the Crimes Act 1900 (in force as at May to June 1981) similarly provided that: "71. Whosoever, being a schoolmaster or other teacher, or a father, or step-father, unlawfully and carnally knows any girl of or above the age of ten years, and under the age of seventeen years, being his pupil, or daughter, or step-daughter, shall be liable to penal servitude for fourteen years." 15 As stated above, however, the consensual sex relations constituting the offence of defilement under the Tasmanian Criminal Code, did not arise as a consequence of a teacher-pupil relationship. At the time the victim and the applicant met, the victim was not even aware that the applicant was a teacher at her school. An essential element for the commission of an offence pursuant to s.73 of the Crimes Act 1900 is that the victim be in relation to the teacher "his pupil". She was not such a "pupil" within the meaning of s.71 or s.73 of the Crimes Act 1900. 16 Thus, the applicant's offence is not a serious offence as: (a) it would not have been an offence in New South Wales in 1981 (see s.5(3)(b) of the Act); and (b) it would not have been an offence in New South Wales today (see s.5(4) of the Act). 17 Accordingly, the first issue (at paragraph 10(a) above) must be answered in the negative: Mr DP, not having been convicted of a "serious sexual offence" as defined by the Act, is not a prohibited person. And therefore this Tribunal has no jurisdiction to consider the second issue or to grant the declaration sought. ORDERS. 1. The Tribunal has no jurisdiction: The offence of which the Applicant was convicted (Defilement of a girl under 17 years of age; 7.12.81; Tasmania) is not a serious sexual offence as defined under the Child Protection (Prohibited Employment) Act 1998 , ss. 5(3)(b) & 5(4). 2. Application is dismissed. 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.