CITATION: TO v Commission for Children and Young People [2007] NSWADT 6 DIVISION: Community Services Division APPLICANT PARTIES: TO RESPONDENT Commission for Children and Young People FILE NUMBER: 054051 HEARING DATES: 20/4/2006, 1/05/2006, 20/606/2006, 24/11/2006 SUBMISSIONS CLOSED: 11 December 2006 DATE OF DECISION: 9 January 2007 BEFORE: Smyth M - Judicial Member CATCHWORDS: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101 APPLICANT Applicant's father REPRESENTATION: RESPONDENT Mr Higgins, Barrister T Golding, Barrister (24 November 2006) ORDERS: It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to TO in respect of the offence of rape and indecent assault on a female for which he was convicted and sentenced in the Supreme Court on 23 February 1982 on condition that he:; 1. (a) provide to the Tribunal and the Respondent within 14 days of the date of these orders a written undertaking that he will not possess or consume cannabis; ; (b) submit to monthly urine analysis testing for cannabis performed by an accredited pathology service of the Applicant's choice for a period of two years from the date of this order. The results of each test must show that the Applicant has not consumed cannabis from the date of these orders; ; (c) arrange for the accredited pathology service to forward the results of the tests referred to in Order 1(b) above to a psychiatrist of the Applicant's choice. TO must consult with that psychiatrist at least on a 6 monthly basis for the purpose of monitoring his test results. The psychiatrist is to be provided with a copy of these orders and the reports written by Dr Allnutt dated 31 January 2006 and 9 April 2006.; 2. must not apply for, commence or remain in any child related employment unless he has commenced compliance with respect to Order 1 (a), (b) and (c) including an initial urine analysis test and consultation with a psychiatrist as specified in (1) (b) and (c) above.; 3. must provide a copy of these orders to any person who employs him in child related employment for a period of two years from the date of this order.; 4. The Registrar of the Tribunal is to serve a copy of these Orders on the Commissioner of Police. 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, (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. REASONS FOR DECISION 1 The Applicant seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 ("Child Protection Act") so that he can work unsupervised with children and young persons. 2 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (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. However, in these reasons, because of the sensitivity of this matter, the Tribunal has decided not to publish any details that could identify the Applicant. The Applicant is referred to in these reasons by the pseudonym, "TO". 3 On 24 November 2006 in a ex tempore decision the Tribunal determined that it could not be reasonably satisfied that the Applicant would not present a real and appreciable risk to children in any circumstances and declined to grant an unconditional declaration under s 9(1) of the Child Protection Act. 4 Having made that finding the Tribunal considered whether it was possible to impose conditions in order to lift the Applicant over the risk threshold. The parties made oral submissions and provided written submissions regarding conditions. 5 The Tribunal now provides written reasons for declining to grant an unconditional declaration under s 9(1) of the Child Protection Act and deals with the issue of conditions. 6 The Tribunal must determine whether TO, (the Applicant), is likely to be a risk to the safety of children and young persons if he applies for, undertakes or remains in child-related employment. Relevant legislation 7 Section 3 of the Child Protection Act defines child-related employment as meaning any employment of the kinds specified that primarily involves direct contact with children where that contact is not directly supervised. 8 Section 6(1) creates an offence of applying for, undertaking or remaining in child-related employment. 9 Section 5(2) provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection Act is not to apply to him or her. Section 9(1) provides that, on application from a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply to him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9). 10 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account: (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. 11 Section 9(7) states that the Respondent is to be a party to any proceedings for an order under s 9 and that the Respondent may make submissions in opposition to, or in support of, the making of the order. 12 The Respondent submitted that the Tribunal should grant a stay on condition that the Applicant was supervised three monthly by a psychiatrist and had urine analysis for cannabis use. The matter should then come back before the Tribunal for a final order. If the Tribunal was not minded to grant a stay then the Respondent submitted that a final order should be granted with those two conditions attached. Standard of proof and meaning of "risk" 13 The Applicant carries the onus of proof, on the Briginshaw standard, [Briginshaw v Briginshaw (1938) 60 CLR 336 at 362] to show that he is not a risk to the safety of children. The meaning of the word "risk", for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V. His Honour agreed with Haylen J's analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on: not 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. 14 Young J, went on to say: One does not define risk as meaning minimal risk. One could exclude fanciful or theoretical risk. What one is looking for is whether in all the circumstances there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on the child. 15 His Honour continued: A balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. 16 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. His Honour said that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an applicant who would otherwise pose some risk to children into an applicant who does not pose a real unacceptable risk to children: par [46]. By implication it would be wrong to impose a condition on an applicant who, without such condition, does not pose a real or appreciable risk. Nature of Applicant's work 17 The Applicant has the opportunity to work for a bus company. The work would involve driving local buses for a passenger transport service, driving a longer distance express bus service and some tour bus services. The Applicant obtained a heavy vehicle license. The Applicant was refused an authority to drive a pubic passenger vehicle apparently on the basis that the imposition of a condition that the Applicant did not engage in child related employment while driving a bus was impractical. On review it was noted that if the Applicant was exempted from the Child Protection Act then there would not be an impediment to him engaging in child related employment and such a condition would not be necessary. 18 Under the Child Protection Act it is an offence for a prohibited person to engage in child related employment. The definition of child related employment does not cover all employment with those under 18 years that primarily involves direct contact with children where that contact is not directly supervised. Only employment of the kind specified in s 3(a) and (b) is covered. Consequently most of the work the Applicant intends to do as a bus driver does not come within that definition. However, employment on school buses is included [s3(a)(xvi)]. Although the order is sought for the purposes of employment as a bus driver an order under s 9(5) would apply to all child related employment. Index offence (s 9(5)(a)) 19 The Applicant was convicted of rape and indecent assault on a female and received a custodial sentence of six years with a non parole period of twenty-two months in the Supreme Court on 23 February 1982. 20 In March 1981 the Applicant approached a woman walking her dog at night. He asked if he could walk with her. She said no. He gripped her shoulder and she ran off. He pursued her and pulled her into long grass and had vaginal sex with her. The Applicant admitted to the offence when interviewed by police the next day. 21 In the course of sentencing the Applicant Cross J make a number of remarks about the offence and the Applicant (Sentencing Remarks Supreme Court 23 February 1982). Cross J described the offence as a "serious enough rape". He commented on the scratches and abrasions on the victim that were sustained in the struggle but noted that the Applicant did not deliberately cause each injury and that the injuries were minor. He referred to the Applicant's background and the evidence that the Applicant was "a normal youth until, when he was about eighteen years of age, his mother and brother were killed in a car accident". 22 Cross J referred to medical evidence that revealed "a history of occasional behaviour capable of being interpreted as a manifestation of psychiatric illness, and indeed in the past he has received some psychiatric treatment." His Honour noted that at the time of the offence the Applicant was awaiting admission to an institution for psychiatric counselling. He also noted the improvements made by the Applicant while on bail having received psychiatric counselling and treatment. 23 Cross J referred to the discharge summary from a psychiatric facility that "indicated he (the Applicant) described the rape incident "in an unemotional way, saying 'she shouldn't have been walking by herself at night'". He also referred to the Applicant's statement in the witness box where he "suggested that this woman, who had merely taken her dog for some exercise on the evening in question, was almost certain to have been raped by someone and that if it had not been the prisoner, it would have been someone else." 24 Cross J took into account what he described as a comprehensive and helpful psychiatrist's report. That psychiatrist concluded that the Applicant's attitude to the rape was "less than satisfactory" but attributed the shallowness to his psychosis rather than to a callousness of reaction. He was also of the view that at the time of the offence the Applicant 'was probably not only affected by liquor but "having a downturn in his psychotic tendency"'. 25 Cross J also took into account that shortly after the incident when interviewed by Police the Applicant made a full and frank confession and "contemporaneously expressed contrition for his action". The age of the Applicant and victim (s 9(5) (b) (c) (d) (d1)) 26 The victim was 27 years old and the Applicant was 23 years old at the time of the offence. The age difference between the Applicant and his victim was four years. The Applicant is now 49 years old. Period of time since the offence was committed (s 9 (a1)) 27 The offence occurred over twenty five years ago. Seriousness of Applicant's total criminal record (s 9(5) (e)) 28 The Applicant's criminal record was tendered in these proceedings. In addition to the index offence the Applicant has convictions for a number of offences. In 1978 he was convicted of possessing and smoking Indian hemp. In 1988 he was convicted of malicious damage to a window. In 1990 he has was convicted of having a low prescribed content of alcohol, driving with a cancelled license and unlawful use of a conveyance. In 1993 he was convicted of having a high prescribed content of alcohol. In 1994 he was convicted of crossing a railway line other than by using a level crossing, pedestrian bridge or subway. There is nothing further on his criminal record. Other relevant matters (s 9(f)) Applicant's contact with children 29 The Applicant gave evidence about his contact with children. He has a five year old son who now lives with his previous partner. His previous partner had two other children. He was involved in those children's activities and attended events with them. He also had contact with the children of his friends. He told the Tribunal that he had never harmed a child and that there had never been any complaints about his dealings with children. Applicant's background and family ties 30 The Applicant told the Tribunal that the most significant event in his life was when his mother and brother were killed in a car accident in 1976 and that this changed his life. He described his life before that occurred as "life had security, work opportunities, social engagement, a family situation" and after that time as "bereft of all those propensities" and "as a distressing time, things changed completely in my life". His parents were separated at the time of his mother's death. He believed that his life would have been entirely different if his mother and brother had not died. He described their house being taken from them, their possessions being sold and the "disappearance of an anchor in my life." 31 He submitted that he had a supportive family. His father represented him in this hearing and the Applicant's evidence was that it was his father's business partner who had offered him the opportunity to work as a bus driver. In recent years he has moved to live closer to family members and currently resides close to his father. Psychiatric history 32 The Applicant has had a number of admissions to psychiatric facilities. In January 1978 he was admitted to a psychiatric hospital after being found walking naked on a highway and having delusional beliefs. He was diagnosed with schizophrenia. In March 1978 he was admitted to a psychiatric centre as he had delusions that he was being influenced by the Devil and the dead. His diagnosis was toxic psychosis. At the time of the index offence he was awaiting admission to a psychiatric facility. As a condition of bail he was admitted to a psychiatric facility in May 1981 and was diagnosed with schizophrenia. 33 There is nothing in the evidence before me to suggest that the Applicant has had any major episodes of psychosis since the early 1980s. The Applicant's medical record and Centrelink records, in evidence before the Tribunal, reveal a number of medical assessments in the 1990's that occurred in the course of determining his eligibility for social security entitlements. Applicant's use of cannabis 34 The Applicant gave evidence about his use of cannabis in the course of the hearing and was granted a certificate under s 128 of the Evidence Act 1995 in regard to that evidence. He was asked about a statement he made to a medical expert, Dr Allnutt, that he had a puff of marijuana five months before his assessment. The Applicant told the Tribunal that he took a puff of a joint that was being passed around and that he was not a regular marijuana user. During cross examination he stated that last year he had smoked cannabis very irregularly. When asked "What are we talking about, just when friends come over for a dinner party or is it---". He replied "Probably less than that. A lot of my friends don't smoke marijuana. I have in the past but these days I'm getting older and people tend to put those things away and that's the case with the matter, we don't smoke very much at all. I mean if you want to put it on a yearly thing maybe four times in a year, if that and as you say at a dinner party or something like that." He later described cannabis as "an almost a non-relevant thing in my life". Expert evidence 35 The Applicant was interviewed and assessed by Dr Allnutt, a psychiatrist, at the request of the Respondent. A report prepared by Dr Allnutt, dated 31 January 2006, and a supplementary report prepared by him, dated 9 April 2006, were in evidence in these proceedings. Dr Allnut also gave oral evidence. 36 In his written report of 31 January 2006, Dr Allnut stated that he used two risk assessment tools; the Static 99 and the SVR-20. The Static 99 is an actuarial tool that produces estimates of future risk based on the number of risk factors present in an individual. After applying the Static 99 Dr Allnut concluded that according to the Static 99 the Applicant fell into a low risk group of future sex offenders. 37 The SRV-20 is a tool developed to guide clinical assessment. Dr Allnutt determined that "Overall based on the SRV-20 he would fall into a group of sex offenders of have (sic) a low risk of future recidivism." 38 Dr Allnutt stated that Having regard to the offending itself, at the material time the applicant was aged 24 years old, he was itinerant; intoxicated; while mental illness cannot be seen as making a substantial or direct contribution to his offending it was probably active at the time to some degree – he was depressed and probably may have been experiencing symptoms of psychosis. The offence was serious, however, the offence was committed approximately 25 years ago and since then there have been no further complaints. Of relevance, the victim was 27 years old. In my opinion the applicant poses a low risk to children or adolescents under the age of 18 of either gender as compared to other sex offenders. 39 In his opinion the Applicant did not currently manifest active symptoms consistent with a major mental illness or of a mood, anxiety or depressive disorder. 40 In a supplementary report of 9 April 2006 after reviewing further psychiatric records Dr Allnutt stated that The psychiatric evidence suggests that the Applicant has a diagnosis of schizophrenia. He had numerous assessment until May 2003. Those assessments identified some over inclusiveness and circumstantiality with restricted or flat affect, which are symptoms that can present in persons with schizophrenia but which are relatively mild or residual. There is not evidence of any frank psychotic episodes since the 1980's. He remains vulnerable to further psychotic episodes in the future especially in the context of ongoing cannabis use. 41 In regard to the risk of the Applicant experiencing a drug induced psychosis and the whether such a risk increased the Applicant's risk to children and young people Dr Allnut stated in his supplementary report that Given that substance may have played a role in his sexual offending and probably contributed to the onset of a psychotic process at the time of his offending, his ongoing use of substances through the years is a cause for concern. That he has suffered a prior episode of psychosis in the past does indicate an underlying vulnerability to future episodes of psychosis if he continues to use substances, This risk would increase if he increased his frequency of cannabis abuse or the amount of cannabis that he abused and would also increase if he persisted in using it at his current usage and might increase as he aged and continued to use. 42 Dr Allnutt went on to say that Should he become psychotic then it would be reasonable to conclude that his judgment may become impaired and his risk to children and young people would increase if he was in a position of responsibility for them. While mentally well he remained in a low risk group. 43 Dr Allnutt took into account his ongoing substance use, and antiviral treatment he was having at the time in formulating some recommendations in his supplementary report. The Applicant had ceased antiviral treatment by the time Dr Allnutt gave oral evidence before the Tribunal. In Dr Allnutt's view the completion of his anti-viral treatment removed that as a risk factor for a relapse. 44 In his oral evidence Dr Allnutt agreed with the Applicant's proposition that it was possible a person could become free of schizophrenia and agreed that it was also possible that the Applicant's condition of schizophrenia had disappeared. He noted that the Applicant had been free of any significant psychotic episode since 1993. He said that the Applicant had a lot of difficulty in the period 1977 to 1993. His understanding was that the Applicant's last contact with a psychiatrist was in 1993 and that the Applicant had a reasonable capacity to function. 45 Dr Allnutt told the Tribunal that the Applicant's risk tended towards the average population. He stated that his only concern was the Applicant's continued use of substances with his history of schizophrenia. He stated that it is strongly believed that substances such as cannabis can trigger relapses in people with schizophrenia who use it. In his view if the Applicant continued to use substances that would increase his risk of psychosis. Dr Allnutt stated that there was a significant reduction in risk if cannabis was abstained from. 46 Dr Allnut considered the issue of potential risk as not only sexual but physical. Dr Allnut stated that the risk was that the Applicant's judgement could become impaired. The Tribunal asked Dr Allnut about the nature of the risk to the safety of children. He told the Tribunal that if the Applicant became psychotic and wanted to drive a bus he could get a disturbance of perception. In his opinion, beliefs could emerge that are inconsistent with the environment. The capacity to make a rational interpretation of environment could become affected and a person may believe things that are not consistent with what happens. They may have persecutory beliefs and encompass children into their belief system. He stated that he was not predicting that would happen but he felt uncomfortable about him driving children if he was experiencing psychosis. 47 Dr Allnutt concluded that the Applicant fell into a low risk group vulnerable to schizophrenia and that his continuing use of cannabis was a concern. Dr Allnutt stated that the only objective measure of abstinence from cannabis was urine drug testing. In his opinion monitoring the Applicant's drug use would ameliorate any concern of risk. He thought that the Applicant would have a strong motivation to abstain. 48 Dr Allnutt also recommended that if the Applicant was working with children he be monitored by a psychiatrist. That was on the basis that any relapse could be picked up early and treated before significant deterioration occurred. Character Evidence 49 The Applicant tendered a number of character references. Some examples follow. 50 His father provided a reference dated July 2005 that referred to the impact on the Applicant of his mother's death in 1976 and difficulties that his son had faced. He also referred to the index offence. He stated that the Applicant took part in many community activities and had built a circle of warm loving friends that he had been in "reasonably constant employment" in the past ten years and vouched for "his integrity and good and reliable character." 51 His ex-partner and the mother of his son stated that the Applicant was a very caring responsible father and described him as amicable and trustworthy. His brother stated that since being released from jail over twenty years ago the Applicant had rebuilt his life and described him as a community-orientated person who had worked closely with children doing face painting on a regular basis at festival events. 52 His current partner stated that he was gentle, courteous and caring person. She stated that he helped her with her work face painting children and that children trusted him. 53 A reference from the Applicant's brother's partner stated that she had known the Applicant for eight years and had observed his relationship with his son and described him as a "very attentive and nurturing father". She gave oral evidence and stated that the Applicant was well respected, well liked and known as a person of integrity. She was aware of the index offence although not all the details of it. Findings and Conclusions 54 In February 1982 the Applicant was convicted of rape and indecent assault of a female. That conviction makes him a prohibited person. 55 The onus is on the Applicant to prove that he does not pose a real and appreciable risk to the safety of children. The test is not whether the Applicant poses a mere theoretical risk. 56 The index offences occurred in 1981, over 25 years ago, when the Applicant was 23 years old. His victim was 27 years old, four years his senior. He is now 49 years old. 57 The offence was serious. In oral evidence the Applicant acknowledged what he termed the "heinous" nature of his offence against the young woman and his regret for that conduct. At the time of sentencing in 1982 Cross J expressed some reservation about his penitence, but took into account the medical evidence that attributed his attitude to the rape to his psychosis rather than to callousness, the fact that he made a full and frank confession to the police at the time and that he expressed contrition for the offence contemporaneously. Cross J also took into account the evidence regarding his psychiatric condition at the time of the offence and his background, including the death of his mother and brother. 58 While the Applicant's responses during cross examination indicated that he continues to believe that women who walk alone at night are vulnerable to rape I do not take that to mean he thinks that they should be raped and accept his evidence that he regrets his conduct in the index offence. 59 Although the Applicant has a number of offences on his criminal record they are not at the serious end of the scale. Other than the index offence, there are no other sexual offences or offences that have inflicted any form of physical harm on people. The Applicant has not committed any offence since the early 1990's. 60 I accept the Applicant's evidence that he has had contact with children over a long period and there have been no complaints about his conduct with children. I accept the Respondent's submission that there is no evidence of paraphilia. There is no evidence before me to suggest that the Applicant has ever harmed a child or young person under the age 18 years. 61 The Applicant gave evidence in an open manner particularly regarding his psychiatric history and his previous and current use of cannabis. I accept his evidence regarding the extent to which he uses cannabis at present. 62 The Tribunal has had the benefit of Dr Allnutt's written reports and oral evidence. He is an experienced psychiatrist and Dr Allnutt's report and oral evidence were well considered and measured. He concluded that the Applicant's level of risk was low while he remained mentally well and that his risk tended towards the average population. He stated that the Applicant has not had any "frank psychotic episodes" since the 1980s. I accept that evidence. 63 Dr Allnutt's expert opinion was that the Applicant "remains vulnerable to further psychotic episodes in future especially in the context of ongoing cannabis abuse" and that if he continued to use substances that would increase his risk of psychosis. In Dr Allnutt's opinion if the Applicant became psychotic his perception could become disturbed and his judgement impaired. In terms of the risk to the safety of children, Dr Allnutt's evidence is that the Applicant may develop persecutory beliefs and children may become encompassed into his belief system. 64 Taking into account all the evidence before me I consider that there is a real and appreciable risk that the Applicant could have another psychotic episode if he continues to use cannabis. On the basis of Dr Allnutt's evidence I am satisfied that if the Applicant had a psychotic episode while engaged in child related employment there is a real and appreciable risk that children could be encompassed in any persecutory beliefs that the Applicant developed. If the Applicant was engaged in child related employment, for example while driving a school bus, and he had a psychotic episode, I am satisfied that there is a real risk that children's lives could be endangered. 65 As on the material before me, I cannot be reasonably satisfied that the Applicant would not present a real and appreciable risk to children in any circumstances, I decline to grant an unconditional declaration under s 9(1). Having made that finding, I must now consider whether it is possible to impose conditions in order to lift the Applicant over the risk threshold. Conditions 66 I accept Dr Allnutt's expert evidence that if the Applicant abstains from cannabis his risk to the safety of children is close to the average population. In Dr Allnutt's opinion the monitoring of the Applicant's drug use would ameliorate any concern of risk. In his opinion the Applicant would have a strong motivation to abstain. 67 On the material before me I am satisfied that the Applicant would not pose a real and appreciable risk to the safety of children if he does not use cannabis. 68 The Applicant has a supportive family and the opportunity to engage in productive employment and that will assist him in maintaining his motivation to stop using cannabis. 69 I am satisfied that by imposing a condition that requires the Applicant to submit a urine sample on a monthly basis for urinanalysis and that such samples not show current cannabis use would minimise the risk of any psychotic episode and consequently the risk to the safety of children to one below a real and appreciable risk. Although the Applicant's use is very intermittent he has used cannabis for a long period of time. A period of two years allows sufficient time to ensure that the Applicant has given up the use of cannabis. 70 Dr Allnut also recommended a period of supervision by a psychiatrist at three monthly intervals. In his view if there were any recurrence of psychosis it could be easily treated. The Applicant submitted that it is not necessary for him to establish a relationship with a psychiatrist to monitor his mental state. 71 The Applicant has not had what Dr Allnutt describes as a "frank psychotic episode" since the early 1980's, more than two decades ago. Dr Allnutt's evidence was that the Applicant did not currently manifest active symptoms consistent with a major mental illness or of a mood, anxiety or depressive disorder. Dr Allnutt's expert evidence is that if the Applicant abstains from cannabis use then his risk to children is close to the average population. Given these factors, if the Applicant is not using cannabis, I do not consider that he would pose a real and appreciable risk to the safety of children. Consequently it is not necessary for me to impose an additional condition on him for psychiatric monitoring of his mental state. 72 The Applicant has a supportive family and the evidence before me indicates that they have been active is seeking psychiatric treatment for him in the past at times he has been unwell. In addition should the Applicant exhibits signs of psychosis the Mental Health Act 1990 provides steps that can be taken if people have reasonable grounds for believing that treatment is necessary for the protection of the Applicant or others from serious harm. 73 The Respondent submitted that the Tribunal should grant a stay on condition that the Applicant was supervised three monthly by a psychiatrist and had urine analysis for cannabis use. The matter should then come back before the Tribunal for a final order. 74 Section 9(6) of the Child Protection Act provides the Tribunal with a power to grant a stay of a prohibition pending final determination of the matter. Given that the matter is able to be finally determined with the imposition of a condition I do not consider it appropriate to delay that final determination by use of the stay power. 75 After the Tribunal gave the ex tempore decision on 24 November 2006 the Applicant and Respondent were provided with a further opportunity to make oral and written submissions regarding conditions. 76 The Applicant considered any conditions unacceptable on the basis that he was not a paedophile and that the index offence occurred a quarter of a century ago. The Applicant also considered that inappropriate weight had been placed on his admission of "a minor use of marijuana" and stated that "it was only a puff and did not in any way connote an on-going heavy usage."[Applicant's submissions dated 1 December 2006 at p8]. 77 Despite these views, in written and oral submissions the Applicant indicated that he was prepared to abstain from cannabis use and to submit to urine analysis. The Applicant maintained that the only just outcome was a clear cut exemption. In written submissions he said that this Tribunal should provide a clear exemption, subject to a number of initiatives that should not be attached to the exemption. These included: a general practitioner taking urine samples once a month for 6 months (or 12 months); the samples being analysed at a government accredited pathology laboratory; the general practitioner keeping appropriate records and making them available for random inspection by an accredited officer of the NSW Department of Health or other acceptable health official; the general practitioner notifying the Tribunal or the Commissioner for Children and Young people or any other approved authority immediately if marijuana is detected, and if detected the immediate rescission of the exemption. 78 The Respondent submitted that any conditions must attach to the exemption. While the Respondent agreed with the Applicant's proposal of monthly testing the Respondent submitted that a two year period was required to allow the Applicant to demonstrate a pattern of abstinence. That period was based on Dr Allnutt's opinion that two years was an appropriate period given the Applicant's long term, but irregular, use of cannabis. 79 The Respondent submitted that Tribunal did not have the power to impose a condition or order on a person or entity that is not sufficiently identified or a party to the proceedings. The Respondent submitted that a psychiatrist was best placed to deal with the Applicant's needs and consultation with a registered psychiatrist was more appropriate than a general practitioner. 80 The Respondent submitted that it was inappropriate to notify the Commission for Children and Young People of any positive test results as the Commission does not have a prosecutorial or investigative function under the Child Protection Act or the Commission for Children and Young People Act (1988) and is not equipped to undertake a monitoring or policing role regarding conditions. 81 The Respondent put forward an alternative of adjourning the matter for two years. If the Applicant had satisfactorily complied with the Respondent's proposed draft minutes of proposed conditions for two years then the Tribunal could consider whether to grant an unconditional exemption. Conclusion 82 I do not consider an adjournment an appropriate course of action as the matter is capable of resolution at this point in time. 83 For the reasons stated earlier I consider it appropriate to impose a condition that the Applicant not consume or possess cannabis and submit to monthly urine analysis testing for cannabis by an accredited pathology service for a period of two years. 84 After taking into account the evidence and submissions before me I consider it appropriate that the test results are provided to a psychiatrist of TO's choice who has access to the reports of Dr Allnutt. For the reasons stated earlier I do not consider it necessary to order that the Applicant attend counselling. However, given the Applicant's psychiatric history and the evidence of Dr Allnutt, a psychiatrist is likely to be better placed to monitor the Applicant's test results than a general practitioner. 85 Having considered all the evidence and submissions before me I am comfortably satisfied that with the imposition of the following conditions TO does not pose "a real and appreciable risk to children". Orders 86 It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to TO in respect of the offence of rape and indecent assault on a female for which he was convicted and sentenced in the Supreme Court on 23 February 1982 on condition that he: 1(a) provide to the Tribunal and the Respondent within 14 days of the date of these orders a written undertaking that he will not possess or consume cannabis; (b) submit to monthly urine analysis testing for cannabis performed by an accredited pathology service of the Applicant's choice for a period of two years from the date of this order. The results of each test must show that the Applicant has not consumed cannabis from the date of these orders; (c) arrange for the accredited pathology service to forward the results of the tests referred to in Order 1(b) above to a psychiatrist of the Applicant's choice. TO must consult with that psychiatrist at least on a 6 monthly basis for the purpose of monitoring his test results. The psychiatrist is to be provided with a copy of these orders and the reports written by Dr Allnutt dated 31 January 2006 and 9 April 2006. 2. must not apply for, commence or remain in any child related employment unless he has commenced compliance with respect to Order 1 (a), (b) and (c) including an initial urine analysis test and consultation with a psychiatrist as specified in (1) (b) and (c) above. 3. must provide a copy of these orders to any person who employs him in child related employment for a period of two years from the date of this order. 4. The Registrar of the Tribunal is to serve a copy of these Orders on the Commissioner of Police. 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.