LL -v- Commission for Children and Young People [2001] NSWADT 174

CITATION: LL -v- Commission for Children and Young People [2001] NSWADT 174 DIVISION: Community Services Division APPLICANT PARTIES: LL RESPONDENT Commission for Children and Young People FILE NUMBER: 014030 HEARING DATES: 01/08/2001, 21/08/2001, 20/09/2001 SUBMISSIONS CLOSED: 10/15/2001 DATE OF DECISION: 10/24/2001

BEFORE: Hennessy N (Deputy President) APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900 CASES CITED: "A" -v- Commission for Children and Young People and Anor [2001 NSWIRComm 194 AG -v- Commission for Children & Young People [2001] NSWADT 163 APPLICANT REPRESENTATION: G Brady, barrister RESPONDENT I Bourke, barrister ORDERS: Mr LL is not a "prohibited person" as defined in s. 5 of the Child Protection (Prohibited Employment) Act 1998 and is entitled to engage in child-related employment as defined in that Act.

Introduction 1 Mr LL applied to the Tribunal under the Child Protection (Prohibited Employment) Act 1998 (CP Act) for a declaration that the Act does not apply to him in respect of certain offences for which he was convicted on 2 February 1981. Such a declaration would enable Mr LL to engage in "child related employment" as defined by the CP Act. 2 The Tribunal may make a declaration on the application of a "prohibited person". Such a person is defined in s 5(1) as "a person convicted of a serious sex offence, whether before or after the commencement of this subsection." A "serious sex offence" is defined in s 5(3) of the CP Act. 3 On 20 September 2001, after several days of hearing of this matter, it came to my attention that the Industrial Relations Commission (the Commission) had handed down a decision on 28 August 2001 ("A" v Commission for Children and Young People and Anor [2001] NSWIRComm 194) which was relevant to the facts in this case. The Commission decided in that case that s 579 of the Crimes Act 1900 applied to the offences for which the applicant had been convicted. The Commission then made a declaration that the applicant was not a prohibited person and that he was entitled to engage in child related employment. 4 This decision raises the issue as to whether Mr LL is a "prohibited person" given the operation of s 579 of the Crimes Act 1900. In brief, that section provides that convictions for offences which meet specified criteria must be disregarded for all purposes whatsoever, and are inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect. If this section applies to Mr LL's conviction, arguably he would not be a "prohibited person" and would be free to engage in any child related employment. 5 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) makes it an offence in respect of proceedings in the Community Services Division of the Tribunal, to publish or broadcast except with the consent of the Tribunal, the name of any person mentioned in such proceedings. Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings, because of the sensitivity of this matter I have decided not to publish the applicant's name or that of any other person mentioned in these proceedings. I have not included in this decision any other information which could lead to the applicant's identification. 6 The parties were invited to make submissions on the question of whether I should follow the decision of Hungerford J in the "A" v Commission for Children and Young People and Anor [2001] NSWIRComm 194. The respondent has appealed against that decision to the Full Bench of the Industrial Relations Commission. 7 In the meantime another member of the Tribunal handed down a decision in AG -v- Commission for Children & Young People [2001] NSWADT 163 which applied "A" v Commission for Children and Young People and Anor and declared that the applicant was not a "prohibited person".