AG -v- Commission for Children & Young People [2001] NSWADT 163

Set aside by Appeal : set aside by appeal on 28 June 2002 (The Commission for Children & Young People -v 'AG'[2002] NSWSC 582)

CITATION: AG -v- Commission for Children & Young People [2001] NSWADT 163 DIVISION: Community Services Division APPLICANT PARTIES: AG RESPONDENT Commission for Children & Young People FILE NUMBER: 014054 HEARING DATES: 29 & 30/08/2001, 06/09/2001 SUBMISSIONS CLOSED: 09/12/2001 DATE OF DECISION: 09/26/2001

BEFORE: Britton A - Judicial 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 A v Commission for Children and Young People and Anor [2001] NSWIRComm 194 CASES CITED: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (147 CLR 297 Commissioner for Children and Young People v "G" & Anor [2001] NSWSC 534 Briginshaw -v- Briginshaw (1938) 60 CLR APPLICANT In person REPRESENTATION: RESPONDENT A C Johnson, solicitot (29 & 30/08/2001) D Ward, solicitor (06/09/2001) ORDERS: Declare that Mr AG is not a "prohibited person" as defined in s. 5 of the Child Protection (Prohibited Employment) Act and is entitled to engage in child-related employment free from the operation of that Act with respect to him.

1 The applicant in this matter is a 70 year old man employed by a specialist school for children suffering from disabilities (the school). In 1951 he was convicted of two counts of indecent assault on a male person. The Child Protection (Prohibited Employment) Act 1998 (Child Protection Act) makes it an offence for a person to apply for, undertake or remain in child-related employment if he or she is a "prohibited person" defined in the Child Protection Act to mean a person who has committed a "serious sex offence." 2 On 24 August 2001 the applicant lodged an application with the Tribunal seeking a declaration that the Act not apply to him in respect of the above mentioned offences and at the same time made application for a stay pending the determination of the substantive application. 3 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal 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 procceedings. 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 in this decsion not to publish the applicant's name or that of any other person mentioned in these proceedings and not to include in this judgement any other information which could lead to the applicant's identification. Accordingly I refer in this decsion to the applicant as "Mr AG". The official copy of the orders provided to the parties will include the name of the applicant. Procedural matters 4 The applicant attended these proceedings by telephone and was self-represented. The respondent was legally represented. 5 The stay application first came before me for hearing on 29 August 2001. At that hearing I deferred determining that application not being satisfied that all relevant material necessary to determine a stay was before me. Because of the age of the applicant's convictions the respondent experienced considerable delay in obtaining relevant historical records. The matter was therefore stood over on a number of occasions until such material became available. Relationship between s. 579 of the Crimes Act and the Child Protection Act 6 On 10 September 2001 I made orders granting a conditional stay reserving reasons for that decision. At the time of making these orders I had not had the opportunity of properly considering the implications of the decision of the Industrial Relations Commission of NSW, A v Commission for Children and Young People and Anor [2001] NSWIRComm 194 which had been handed down the day prior to this matter coming before me. The Industrial Relations Commission of NSW (IRC) shares jurisdiction with the Administrative Decisions Tribunal (ADT) in respect of the Child Protection Act. A v Commission for Children and Young People and Anor concerned an application to the IRC by a person who had committed a "serious sex offence" as defined by s. 5 of the Act. The issue for determination was the operation and interaction between s 579 of the Crimes Act and the relevant provisions of the Child Protection Act. In that decision Hungerford J determined that the applicant was not a "prohibited person" as defined in s. 5 of the Act by reason of the operation of s. 579 of the Crimes Act and accordingly the Child Protection Act did not prohibit his employment in child-related areas. 7 It is convenient at this point to set out the relevant statutory provisions. Section 6(1) of the Child Protection Act makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment. A prohibited person is defined by s 5(1) to mean a person convicted of a serious sex offence. 8 Section 5(3) defines a serious sex offence to mean (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 (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 the regulations. (4) An offence that was a serious sex offence at the time of its commission is not a 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 579 of the Crimes Act 1900 provides that a conviction for an offence is to be "disregarded for all purposes whatsoever", "be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect" and any question "may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into" providing certain conditions are met. In summary these conditions are that the person entered into a recognizance; at least fifteen years have elapsed since that recognizance was entered into; the conditions of the recognizance were observed; and, during the relevant period the person was not convicted of an offence, or a finding made that a charge had been proved against him or her. 10 Hungerford J rejected the respondent's argument that s. 579 of the Crimes Act and the relevant provisions of the Child Protection Act were inconsistent and as such the earlier enacted Crimes Act must yield to the later enacted Child Protection Act. Nor did Hungerford J accept the respondent's submission that s. 12(1) of the Child Protection Act which provides that that statute "prevails to the extent of any inconsistency between it and any other any other Act or law" was a complete answer to the relationship between the two (apparently) competing statutes. 11 Hungerford J took the view [at 43] that "there is nothing in the statutory scheme of the Child Protection (Prohibited Employment) Act, …to make it clearly and indisputably contradictory of s 579. Indeed, I am satisfied that "the fairer and more convenient" construction, to adopt the approach of Mason J in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (147 CLR 297 at p 321), and one which is consistent with the competing provisions, would only be for them to operate as each subject to and in empathy with the other." He explained [at 44]: "The very basis of the scheme in the Child Protection (Prohibited Employment) Act is the status of a person as a "prohibited person" which, in turn, is made to depend upon the person having been convicted of a serious sex offence; if there not be at any relevant time such a conviction, then, it must be the case, the person would not be a prohibited person. In other words, I see no difficulty in the operation of the statute, either as to its terms or in their implementation, in the conviction concerned being one which is only properly recognisable and effective as such. Where a conviction for an offence for some reason, such as s 579 here, is no longer truly effective in any respect then, in my view, it should not, indeed cannot, be sufficiently active or operative to be a relevant conviction for the purposes of s 5 of the Child Protection (Prohibited Employment) Act ; it has, by statute, to be disregarded and is no longer of any legal force or effect. That view of the interaction between the two provisions seems to me to be consistent with the ordinary meaning of the words used in each and as being consistent with the legislative intent thereby evinced as to both schemes. I see no ambiguity in the provisions as so understood."