Industrial Relations Commission of New South Wales CITATION : H and the Commission for Children and Young People [2001] NSWIRComm 256 APPLICANT H PARTIES : RESPONDENT The Commission for Children and Young People INTERVENOR New England Institute of TAFE FILE NUMBER: IRC6042 of 2001 CORAM: Peterson J CATCHWORDS : Child Protection - Applicant convicted of serious sexual offence - application for stay - application opposed - privacy limitation on disclosure of ages - applicant employed at TAFE for 16 years - applicant law abiding and responsible citizen - application stayed on conditions. LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Privacy and Personal Information Protection Act 1998 CASES CITED : A v The Commission for Children and Young People (No 2) (2000-2001) 104 IR 119 HEARING DATES: 10/15/2001 DATE OF JUDGMENT: 11/02/2001 APPLICANT Mr A A Hatcher of counsel SOLICITOR Jones Staff & Co. SYDNEY. RESPONDENT Mr G W Moore of counsel LEGAL REPRESENTATIVES: SOLICITOR Crown Solicitor's Office, SYDNEY. INTERVENOR Ms S Winters of counsel SOLICITOR MLJ Lawyers NEWCASTLE JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PETERSON J DATE: 2 NOVEMBER 2001 Matter No. IRC6042 of 2001 'H' AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE. Application under s9 of the Child Protection (Prohibited Employment) Act 1998. INTERLOCUTORY DECISION RE STAY APPLICATION 1 The applicant, "H", has applied for a declaration that the Child Protection (Prohibited Employment) Act 1998 ('the Act') is not to apply to the applicant in his employment as a Tool Storeman at the New England Institute of TAFE ('the Institute'). This judgment concerns a contested application for an order staying the operation of the Act pending the determination of the substantive application. 2 The applicant has been employed by the Institute for 16 years. Approximately 9 years ago he formed a relationship with a 15 year-old girl he had met in the course of his participation in the University of New England Diving Club. He was an organiser of some of the activities of the Club, including training courses, which involved theoretical training in Armidale and boat dives in Coffs Harbour. They met when the girl and her father both undertook one such course. Subsequently, in Armidale, the applicant had sexual intercourse with the girl prior to her turning 16 years of age; they had a continuing relationship for some time thereafter. The applicant was 22 years older than the girl. 3 Subsequently, a complaint was made by the girl to the Police, it seems at the urging of her father, after the relationship had ceased. The applicant was charged, co-operated with Police, pleaded guilty and was convicted of the offence of having sexual intercourse with a child between the ages of 10 years and 16 years. He was fined $500.00 and bound over to be of good behaviour for 12 months. He has not come under notice for any other offence of this kind either before or after that conviction. The applicant has been treated by his employer as being involved in child-related employment within the meaning of the Act and, accordingly, has been required to cease to undertake the duties of his employment. He was provided with options, one of which was to take leave pending this application, which he has done. 4 The Commission for Children and Young People ('the CCYP') has appeared as the responding party to the application. The Institute has sought, and been granted, leave to intervene in the proceedings (although there is perhaps every reason for it to be treated as a party). Both the CCYP and the Institute have actively opposed the application for a stay. The applicant has been subjected to cross-examination by counsel for both of those parties and the Institute has adduced evidence going to the age distribution of students on the Armidale campus, the nature of the applicant's duties, a significant number of which were said to be unsupervised, and to establish the fact that the applicant would come into contact with persons under the age of 18 whilst carrying out his functions. 5 The essential circumstances of the applicant's work are as a Tool Storeman for the Carpentry and Joinery, Welding and Automotive Courses at the Institute. At the present time the layout of the storerooms is that they connect to each of the teaching areas by way of a glass covered counter, although these counters are to be removed to give doorway access. His duties also extend to setting up classrooms, clearing up after classes therein and servicing machinery. The applicant comes into contact with students who seek tools or materials at these counters and also in the classrooms themselves. In the latter circumstance, the classroom is occupied by students and one or more teachers although in the welding classroom, the welding bays are divided off and, in theory, and probably in practice, the teacher might be situated with a student within a particular bay while the applicant was present undertaking some function in the classroom itself. Other duties which cause contact between the applicant and students involve his functions as a maintenance man undertaking activities such as replenishing photocopier paper, changing light bulbs, washing vehicles and the like. At these times students are physically free to, and sometimes do, converse with him. 6 Before dealing with the requirements of the Act with respect to the application for a stay I mention that the CCYP, whilst opposing the stay on grounds which require to be dealt with, suggested that if the Commission was inclined to grant a stay that it would be appropriate to impose conditions upon the applicant. Those conditions, to which the applicant, but not the Institute, was prepared to agree, reflected those imposed by Wright J, President, in A v The Commission for Children and Young People (No 2) (2000) 104 IR 119, and were as follows: That the applicant: 1. Not engage in any other child-related employment, whether paid or voluntary, for the duration of the stay order. 2. Not have any unsupervised contact with students aged less than 18 years whilst engaged in employment at the New England Institute of TAFE. 3. Not engage in a role of supervision, instruction or any other voluntary role within the University of New England Diving Club. If, after further enquiries, the Commission for Children and Young People considers that the applicant should be assessed by a suitably qualified psychologist in order to make submissions pursuant to s9(7) of the Act, the applicant consents to assessment by a psychologist nominated by the Commission for Children and Young People. 7 In the course of argument the Institute submitted that the second condition was impossible of achievement because of the nature of the applicant's work and the inevitability of his having unsupervised contact with such persons during the performance of that work. I raised the possibility that the condition, if it were to be applied, might be amended to relate to contact with female students under the age of 18 identified as such to him by the Institute and also that the teachers in the three relevant areas with whom the applicant has more or less constant contact should be made aware of the fact that the applicant is the subject of the condition. The Institute tentatively raised a concern that there may be some privacy limitation on its ability to disclose the age of students to one of the staff with whom they have contact. Subsequently, the applicant and the Institute filed competing written submissions on the question, which I will deal with in due course. The Relevant Scheme of the Act 8 The Act by s6(1) makes it an offence for a person convicted of a serious sex offence (as defined) to remain and s8(1) makes it an offence for the employer to continue to employ a person, known to be a prohibited person, in child-related employment. Section 3, Definitions, defines child-related employment as employment of various kinds as described, of which it is accepted that the Institute is within, "that primarily involves direct contact with children where that contact is not directly supervised". While the applicant sought to argue that the employment does not meet that description, I am satisfied on the evidence, that it does. Section 9 authorises this Commission and the Administrative Decisions Tribunal, on the application of a prohibited person, to declare that the Act not apply to the person in respect of a specified offence. These proceedings relate to such an application. Section 9(6) authorises, in proceedings such as this, the Commission making an order the effect of which is to "stay the operation of a prohibition under this Act pending the determination of the matter". 9 However, s9(4) and s9(5) are of particular significance. Those provisions are in the following terms: 9(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, (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, (e) the seriousness of the prohibited person's total criminal record, (f) such other matters as the tribunal considers relevant. 10 It is apparent from s9(4) that the Commission must come to a positive conclusion before making an order staying the operation of the Act, that the applicant does not pose a risk to the safety of children. After taking into account the matters in s9(5) the requirement with respect to the risk to the safety of children becomes a vital consideration. The Facts 11 The relevant facts which appear to me to be central to determination of this question are as follows: 1. The applicant has been employed by the Institute for 16 years. During that period no event has occurred within the context of his employment which could be thought to militate against his suitability to continue therein. 2. Early in 1993 he met and formed a friendship, which developed it seems fairly quickly into a relationship, with the 15 year-old girl. Either in April or June 1993, the date is uncertain, he had sexual intercourse with the girl. She did not turn 16 until November 1993. For the purposes of the crime with which he was charged a particular date in September 1993 was selected by the prosecutor as the only date capable of being confirmed as one on which the offence occurred. On the evidence before me, the offence appears to have occurred on one or more other occasions in the period April to November 1993. 3. The applicant undertook a pre-sentence assessment and a report was prepared and placed in evidence both in the criminal proceedings and here. That report, in my view, reads favourably to the applicant. The observations contained therein include the following: Offence The circumstances seem to be clearly outlined in Police facts. Though it is difficult to be sure of the whole picture without having interviewed the victim, the impression gained through enquiry, is that Mr H's behaviour came about as a consequence of genuine mutual affection and poor judgement rather than the improper use of power which might be implied by the age difference. Additionally, that the motivation for bringing the charge may have been that of external parental pressure, rather than a personal need for justice. Enquiries about the offender give no evidence of any sexual deviance or pathological leaning in this regard. It seems that Mr H is however an anxious man who is generous, vulnerable to the emotions of others and inclined to wish to be supportive and helpful. It is noted also, that according to his doctor, traits of depression and confusion, often resulting in poor decision making, are symptoms of his illness Evaluation Mr H is fundamentally a law abiding and responsible citizen. It seems that, although aware of the illegality of his behaviour at the time, the depth of involvement and the confidence he had in the substance of the relationship, saw him make the judgements he did. He remains very concerned about the repercussions on his life, and in all of the circumstances, is unlikely to become similarly involved. He is assessed as suitable for a Community Service Order should the Court see imprisonment as a consideration. It is felt that there is no need for supervision should he be placed on recognizance. He could service a monetary penalty. 4. The Facts Sheet prepared by the Police and utilised for the purpose of his criminal proceedings again seems to me to be written in a manner favourable to the applicant. Whilst recording the history and in particular the defendant's knowledge, which he openly admitted to Police, that he knew she was under 16 when they engaged in sexual intercourse, it contained this: The victim in this matter has stated that she was a willing party and that she fully consented to her engagement in sexual intercourse. The victim further stated that she was not pressured, intimidated or coerced into the act of sexual intercourse and that she did so of her own free will. The relationship between the victim and the defendant continued over the next 12 months during which time sexual intercourse was performed by agreement of both parties on a repetitive basis. The only known date which can be established for prosecution is the night of Saturday the 16th of September, 1993 when the victim stated that she spent the night at the defendant's home and they engaged in sexual intercourse. That date forms the basis of the second charge against the defendant. The victim turned 16 on the 11th of November, 1993 and the relationship extended through into 1994. Despite some short breaks the relationship continued through until the 15th of July, 1994 when the victim became involved with another male person. The victim and the defendant remained friends after she had formed her new relationship and at the time the defendant was first spoken to by Police on the afternoon of Monday the 19th of September, 1994 he was stunned at her actions in laying a complaint against him. The defendant was most co-operative with Police during the investigation. He willingly participated in an electronically recorded interview in which he freely admitted his complete involvement with the victim. The defendant stated that although he was aware of the age of the victim at the time they first engaged in sexual intercourse, his genuine feelings for her, and her willingness to participate in such a relationship enabled him to accept the given situation. The defendant stated during the recorded interview that he and the victim had agreed to suppress information regarding their sexual relationship prior to her turning 16 years of age. The defendant, despite his knowledge of her age and the fact that it was unlawful to engage in sexual intercourse with her before she turned 16 years of age, has found it difficult to accept the complaint against him. The defendant last spoke with the victim on Tuesday the 13th of September, 1994 and he believed that despite a small disagreeance they still enjoyed a good friendship. The victim attended the Police Station with her father on Saturday the 17th of September, 1994 after her father had complained of the defendant's involvement with his daughter. The victim signed a statement of complaint relative to her engagement in sexual intercourse with the defendant despite her full consent for such engagements and willingness to participate in same. That statement is attached hereto. The victim has suffered no obvious physical or emotional trauma as a result of her relationship with the defendant. At the time she made the complaints against the defendant, she was offered the opportunity of undergoing counselling which she declined. The victim has subsequently declined a further offer for same. 5. The offence with which the applicant was charged carried a maximum penalty of 8 years imprisonment. While there is no gainsaying the proposition that conduct of this kind is of the utmost gravity, nevertheless the penalty imposed on the applicant having regard to the facts of the matter, can only be seen as at the lower end of the scale. There is also no room for doubting or questioning the appropriateness of the penalty imposed in that matter. 6. The applicant will come into contact from time to time with females under the age of 18 years in the course of his duties. That contact will be fleeting and casual in some circumstances such as when he is engaged in activities away from the storerooms and classrooms. That contact would not in my view constitute direct contact within the meaning of the definition of child-related employment which must be, to meet that description, the result of employment "that primarily involves direct contact with children . . .". Incidental, casual, passing contact does not, in my view, fit within that description. 7. The applicant will also come into contact with females under 18 years in a way which does fit within the phrase "direct contact" when carrying out his functions vis-a-vis the tool and material store and the classrooms. That contact will be limited to a small number of females, it seems of the order of 2, although that number will vary from time to time given the nature of the institution, but it generally is likely to be supervised contact. There may be occasions where the contact is not supervised. 8. It is, however, important to appreciate that this contact will be no different to that which has been occurring as between the applicant and such female students for at least the 8 year period since he committed the offence for which he was convicted. Conclusions 12 I have already dealt with the first four paragraphs of s9(5) of the Act. Paying regard to those matters I consider that the other features of the case weigh heavily in the applicant's favour. In particular I am persuaded by the relatively long period of years which has passed since the imposition of his sentence, and indeed the expiration of the period in respect of which he was bound to be of good behaviour, and the fact that there has been no recurrence of the relevant kind. That fact seems to me to be a suitable measure of the accuracy of the forecast of the officer undertaking the assessment of the applicant prior to his sentencing for the criminal conviction where it was said that the applicant "is unlikely to become similarly involved". It was also said that the applicant is "fundamentally a law abiding and responsible citizen". 13 I am satisfied that the applicant has made out a case for a stay of the operation of the prohibition, pending the determination of the matter. I am satisfied for that purpose that the evidence establishes the applicant does not pose a risk to the safety of children. However, pending the hearing of the matter, I consider it is appropriate that the conditions referred to in paragraph 6 should, if capable of implementation, be adopted. The caveat as to implementation relates to the identification of students aged less than 18 years at the Institute. It is obvious that the condition may only operate if the applicant has work-related contact with students aged less than 18 years, known to him to be of that category. It would also be necessary that teachers who would provide the supervision of such contact be aware of the students fitting within the under 18 years category. 14 The Institute has submitted that, it appears from the provisions of ss17 and 18 of the Privacy and Personal Information Protection Act 1998 that the Institute is prevented from disclosing information about students to the applicant, including, in particular, the age of a student. A contrary submission was made for the applicant. 15 Section 4 of that Act defines "personal information" in terms which includes information about a persons age or date of birth. Sections 17 and 18 are in the following terms: 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless: (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person. 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 16 The submissions made for the applicant on the matter against the view that the Privacy and Personal Information Protection Act 1998 would not prohibit the identification of female students with whom the applicant has involvement as being children for the purposes of the Act were as follows: Firstly, this is not "personal information" as defined by s.4 of the Privacy and Personal Information Protection Act. S.4(1) makes it clear that personal information is information "about an individual whose identify is apparent or can reasonably be ascertained from the information or opinion". Information about age is not per se information that permits the identification of a person. In any event, the identity of the students concerned would be already known to the applicant. The examples of personal information set out in s.4(2) support this submission. Secondly, the applicant need not be informed as to details of the age and date of birth of particular students. All he needs to know is whether a particular female student is a child for the purposes of Child Protection Prohibited Employment Act . This could not in any sense amount to disclosure of personal information as defined. Thirdly, it is far from clear that, even if the information was personal information as defined, a disclosure of it to the applicant would involve any contravention of s.17 or s.18 of the Privacy and Personal Information Protection Act . As to s.17, it would be likely that TAFE's collection of information as to students' ages would be for the purpose, inter alia, of making sure that it is able to comply with the statutory obligations under the Child Protection Prohibited Employment Act. Indeed, presumably it was such information which permitted TAFE to reach the conclusion that the applicant was engaged in child-related employment. As to s.18, no "disclosure" is involved. The applicant is an employee of TAFE, not an outside individual. S.18 could not be read as preventing a public sector agency from providing its own employees with necessary information; otherwise information collected could never be used at all. S.18 is intended to prevent disclosure to members of the public or to other public sector agencies. 17 I consider these submissions to be largely correct. The purpose of the condition proposed to be placed upon the applicant is to ensure that the applicant does not have unsupervised contact with particular female students. The consequential obligation imposed on the Institute is to identify the names of those students, not their ages. It may be implicit in the identification that they are, by virtue of their being children for the purposes of the Act, under the age of 18 years. Therefore, assuming, without deciding, that the age of a particular student was "personal information" as defined by s.4 (a matter about which there seems little room for doubt) I consider that the suggested condition would not involve any disclosure in breach of the Act. Further, were the identification of a person for this purpose to involve a use of 'personal information', it would seem to me not to be a use which could be said to be "for a purpose other than that for which it was collected" (s.17). This use is one by the Institute for its ordinary purposes of providing appropriate education, in this case to the student in question. 18 Were the position otherwise, it would seem to me appropriate that the Commission should reconsider the imposition of a condition of the kind with which this objection is concerned. This being an application for stay pending the hearing and determination of the matter, it is inappropriate to delve more deeply into that question. However, the many years of satisfactory service provided by the applicant, where unsupervised contact with female children under the age of 18 years has occurred from time to time over that period, raises a question as to not only the efficacy but the appropriateness of such an condition on a continuing basis. However, I am satisfied that conditions ought be imposed at this stage. 19 The Commission orders that the prohibition on the employment of the applicant at the Institute be stayed pending the determination of the substantive application, conditionally upon the applicant complying with the following: 1. Not engage in any other child-related employment, whether paid or voluntary, for the duration of the stay order. 2. Not have any unsupervised contact with female students aged less than 18 years, as may be identified to the applicant by, and whilst engaged in employment at, the New England Institute of TAFE. 3. Not engage in a role of supervision, instruction or any other voluntary role within the University of New England Diving Club. If, after further enquiries, the Commission for Children and Young People considers that the applicant should be assessed by a suitably qualified psychologist in order to make submissions pursuant to s9(7) of the Act, the applicant consents to assessment by a psychologist nominated by the Commission for Children and Young People. 20 The order will operate forthwith pending the determination of the substantive application. 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.