Industrial Relations Commission of New South Wales CITATION : L v Commission for Children and Young People [2001] NSWIRComm 134 APPLICANT L PARTIES : RESPONDENT Commission for Children and Young People FILE NUMBER: IRC5743 of 2000 CORAM: Peterson J CATCHWORDS : Child Protection (Prohibited Employment) Act - application for declaration under s9 - conviction for serious sexual offence 12 years ago - psychological assessments favourable to applicant - consideration of concept of risk - finding that applicant does not pose a risk to safety of children - declaration and order made LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900 CASES CITED : HREA and the Commission for Children and Young People, Unreported [2001] NSWIRComm 93 G v J & H, Unreported [2001] NSWIRComm 69 HEARING DATES: 04/11/2001 DATE OF JUDGMENT: 06/12/2001 APPLICANT Ms N H Rudland of counsel UNION New South Wales Nurses' Association SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT M I D Bourke of counsel SOLICITOR Crown Solicitor's Office. SYDNEY. JUDGMENT: - 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PETERSON J DATE: 12 JUNE 2001 Matter No. IRC5743 of 2000 L and THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE Application under s9 of the Child Protection (Prohibited Employment) Act 1998 DECISION 1 Section 9 of the Child Protection (Prohibited Employment) Act 1998 ('the Act') enables a person prohibited thereby from employment involving children, to apply to this Commission for an order declaring that the Act is not to apply to the person in respect of a specified offence. 2 The New South Wales Nurses' Association has applied, on behalf of its member, Ms L, for an order declaring that the Act not apply to her in respect of a particular sexual offence. Ms L, a married woman of some 44 years of age, is registered as an enrolled nurse with the New South Wales Nurses Registration Board and has been employed by a private hospital for many years in that capacity. On 17 July 2000 she applied to do some casual work with an employment agency, this being in addition to her regular night shift work. 3 Her application to the employment agency caused an employment check to be undertaken which did not come back clear. Two days later an officer of the Staff Records Management Unit of the New South Wales Health Department rang her about her application to the agency. They later met in Sydney when she was then informed that she was a prohibited person under the Act. Ms L then took advice and the consequence is this application. 4 After hearing the submissions in the matter on 11 April 2001 I indicated that I was willing on the facts of the case to make an order and that I would publish my reasons therefore in due course. The order made was: 1. The Commission declares that the Child Protection (Prohibited Employment) Act 1998 is not to apply to the applicant in respect of the offence in 1989 of incite person under 16 years of age to act of indecency with person in authority. 2. The Commission orders the Commissioner of Police be notified as to the terms of the above declaration. 5 The contention by the applicant association on behalf of Ms L is that in reality the risk which she would pose to children was from the time she was charged always low, indeed probably non-existent. If there were any risk to children evidenced by her offence, it was wiped out by the severe consequences which flowed in relation thereto. 6 The respondent to the proceedings, the Commission for Children and Young People, adopted a neutral position in the matter, making no submission on the merits of the application apart from pointing to the onus which the applicant bore under s.9 of the Act. It is important to note that at an early stage of the proceedings, that Commission had intended to oppose the application for a number of reasons but did indicate that it would reconsider its position if a positive psychological reassessment was made subsequently. That reassessment having been undertaken (and now being in evidence), the respondent then adopted the stance in the proceedings which I have identified. 7 The jurisdiction conferred on the Industrial Relations Commission of New South Wales by the Act is not one which can be exercised, as it were, "by consent". That jurisdiction is both limited by the Act in a way which I shall summarise, but may only be exercised in accordance with the strict dictates of s.9(4) and (5). Under the latter provision a number of specified considerations must be taken into account in deciding whether or not to make an order declaring that the Act is not to apply to the person. Under s.9(4) the Commission may not make an order "unless it considers the person the subject of the proposed order does not pose a risk to the safety of children". 8 The scheme of the Act, which in its long title is said to be one "to prohibit the employment in child-related employment of persons found guilty of committing certain serious sex offences", is to make it an offence for a prohibited person to apply for, undertake or remain in child-related employment and create offences by employers who commence to employ a person in child-related employment without requiring disclosure as to whether or not the employee is a prohibited person, or to commence or continue to employ that person in employment of that kind knowing the employee is a prohibited person. Other offences are created which do not require exposition here. 9 A prohibited person is defined by s.5(1) as "a person convicted of a serious sex offence, whether before or after the commencement of this subsection" (the Act commenced on 3 July 2000). A serious sex offence is defined by reference to a number of statutory provisions or effects such as (relevantly here) 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 (s.5(3)(a)). 10 The final aspect of the statutory scheme which requires reference is the definition in s.3 of "child-related employment" which is as follows: Child-Related Employment: (a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised: (i) employment involving the provision of child protection services, (ii) employment in pre-schools, kindergartens and child care centres (including residential child care centres), (iii) employment in schools or other educational institutions (not being universities), (iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987), (v) employment in refuges used by children, (vi) employment in wards of public or private hospitals in which children are patients, (vii) employment in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement, (viii) employment in any religious organisation, (ix) employment in entertainment venues where the clientele is primarily children, (x) employment as a babysitter or childminder that is arranged by a commercial agency, (xi) employment involving fostering or other child care, (xii) employment involving regular provision of taxi services for the transport of children with a disability, (xiii) employment involving the private tuition of children, (xiv) employment involving the direct provision of child health services, (xv) employment involving the provision of counselling or other support services for children, (xvi) employment on school buses, (xvii) employment at overnight camps for children, and (b) includes any other employment of a kind prescribed by the regulations, but does not include any employment of a kind excluded by the regulations. 11 On the evidence in the proceedings, Ms L performs work on her regular night shift within the wards of a private hospital in which children are rarely, but sometimes, seen. On those occasions direct contact with children is possible without the physical presence of a supervisor. This raises the question whether her employment may be said to be "primarily" involving direct contact with children for the purposes of the definition of "child-related employment". I take the view for reasons which I have given in the matter of HREA and the Commission for Children and Young People (IRC4337 of 2000, Unreported [2001] NSWIRComm 93, 2 May 2001) that the concept of the employment "primarily" involving direct contact cannot have been intended to mean that the employment was substantially so in the sense of the quantity of such contact, but rather that as a primary feature the work itself may involve direct contact of the kind described in the definition. 12 I turn now to a consideration of the facts of the present case. 13 In September 1989 Ms L was convicted in the District Court of New South Wales of the offence of Incite a person under the age of 16 years to commit an act of indecency with a person in authority. The charge related to circumstances in which she took photographs of her four-year old child acting indecently in connection with her husband, the child's father. The offence came to light after she had submitted the film for processing through a local pharmacy and the photographs were observed by staff of the processing laboratory, who involved the police. 14 I note that the computer printout of Ms L's record with the New South Wales Police Service records convictions in relation to the offence already identified but also, it appears in error, in relation to the offence of Commit act indecency with person under 16 by person in authority. The file number referred to in relation to that conviction as noted is the same as that in relation to the Incite charge, which is otherwise established on the evidence as the only charge in relation to which a conviction was entered. 15 In the District Court Ms L was required to enter into a recognisance in the sum of $1,000 to be of good behaviour for a period of four years subject to the further condition that she place herself under the supervision and guidance of the Probation and Parole Service. She was required to obey all directions of that Service including directions as to psychological and/or psychiatric counselling as may seem necessary by the officer-in-charge of her case, with the proviso that she may be released after 18 months. 16 Subsequent to the laying of charges, the Department of Family and Community Services became involved and took charge of the child pending a decision as to her welfare. She was returned to the care of her parents about one month later, after an assessment was made of the parents and the child by Ms Toni Single, a Senior Clinical Psychologist. Ms Single recommended that course, together with some psychotherapy for the mother and continuing "support" for the family while awaiting the Criminal Court proceedings and perhaps afterwards if need be. 17 The child has remained with the family since 1989 and the family have not come under notice since that time. 18 The assessment by Ms Single in 1989 is in evidence. It expresses an opinion which included the following: The taking of such photographs of a young child is most inappropriate and has the potential for causing harm to a child's emotional and sexual development. It is my opinion that these photos were not taken for pornographic reasons nor as part of sexual abuse of the child. Fortunately, the child herself does not appear to have suffered emotionally from this photographic session. No doubt her young age, the context in which the activity took place and the parents' attitude to the events have been protective to her on this occasion . (She has certainly however been affected by the aftermath of the events - her month's separation from her parents and the continuing parental depression and anxiety.) This is not to dismiss the photographs as "innocent". They are most inappropriate and any continuance of such activity, especially as she grows older, will certainly present major problems for the child's development. I would consider that the risk of recurrence of such events is low, although, unless the mother can resolve some of her own psychosexual conflicts, some of these may continue to be projected onto the child. It would seem that the mother has been the main instigator in these events. Her involvement however does not appear to be motivated by a desire for sexual exploitation of the child but has rather been a result of aspects of her own psychosexual development which has made her unable, to some degree, to understand the inappropriateness of what has happened. She is ordinarily a most devoted and involved mother who would wish to protect her daughter at all costs. However, the unresolved nature of some of the mother's conflicts with regard to her own psychosexual development and her wish to "save" the child from such conflicts has ironically distorted her view of the child's needs. In all other aspects of the child's development, she has been a caring and appropriate mother. . . . However, one can never unequivocally guarantee the future protection of a child. Because of what has happened, (the child) must be considered to be more at risk for sexual exploitation within the family than the average child. This being said, it is my opinion that the risk of this occurring in the near future is still low. 19 On 6 April 2001 Ms Jenny Howell, a Consulting Psychologist, provided to the Crown Solicitor's Office a current psychological assessment in relation to Ms L. Her report includes the following conclusion: There are currently no psychometric tools available to help determine the level of risk with female sexual offenders. Based on my own interview and Ms Toni Single's report, which was written soon after the offence, I would judge the risk of Ms L re-offending to be low. I do not believe that the photographs were taken for pornographic reasons or that Ms L intended to exploit her daughter. There is no previous or subsequent record of any similar or other offences. It would appear that this was a spontaneous inappropriate act. 20 I also note that Ms Howell's report includes reference to assessments made by other persons, including a child protection worker from the Department of Community Services for the purposes of Children's Court proceedings in 1989 and an employee of the Sexual Assault Centre, both of which indicated that Ms L's child did not present as a victim of ongoing sexual abuse or a sexually abused child. 21 Other parts of s.9 presently relevant are as follows: 9 IRC and ADT may make declarations concerning prohibited persons (3) The Industrial Relations Commission may not make an order under this section unless: (a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act, (b) the person was such an employee who was dismissed from that employment under this Act. (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) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order. 22 It was in these circumstances that the applicant submitted that there were essentially four questions which have to be answered before one gets to a consideration of the factors in s.9. Those questions, which I accept as the relevant ones, were: 1. Is Ms L a prohibited person (s.5(1) and s.5(3)(a))? 2. Is Ms L an employee liable to be dismissed or an employee who was dismissed (s.9(3))? 3. Is Ms L's employment child-related employment for the purposes of the definition in s.3(a)?; and 4. Does Ms L pose a risk to the safety of children? The first three questions were submitted to require a positive answer in the light of the evidence and the fourth a negative answer. 23 As to the first question, there is no room for doubting that Ms L was a prohibited person within the meaning of s.5 of the Act. The offence of which she was convicted arose under s.61E of (2) of the Crimes Act 1900 and involved a maximum penalty of imprisonment for two years (now see s.61O of the Crimes Act in respect of which the same offence now carries a maximum penalty of seven years imprisonment). Accordingly, the offence is a serious sexual offence for the purposes of s.5(3)(a) of the Act. 24 As the second question, two forms of employment rise in the evidence. The first is Ms L's permanent part-time work as a night shift enrolled nurse in a private hospital in which she may be obliged to have contact with children without direct supervision. In that context she is working in child-related employment and, in order to continue therein, would require a declaration that the Act is inapplicable to her offence. 25 As to the third question, it is unnecessary to consider the consequences with respect to the cause of the discovery of her prohibited person status, namely the application for additional work through the employment agency. The nature of any work to be done under that contact is not in evidence. However, the Act applies not to prevent persons from engaging in a particular employment, but in relation to a specified offence. A declaration that the Act does not apply in relation to that offence means that Ms L would be entitled to undertake any work in relation to child-related employment wherever situated in New South Wales (see the judgment of Kavanagh J in G v J & H, Unreported, [2001] NSWIRComm 69 at paragraph 37). 26 The fourth question raised is whether Ms L poses a risk to children in terms of s.9(4) of the Act. This question requires somewhat more lengthy consideration. 27 Section 9(4) requires the Commission to abstain from making an order unless it considers the person "does not pose a risk to the safety of children". This test raises a question the answer to which in a given case may not readily appear. Risk is a concept the parameters of which may vary from the perspective of the assessor, but more particularly, will also vary according to the known facts. On one view of it, the exposure of children to adults, even in the usually supremely safe context of child and parent, will always contain the possibility of a risk to the safety of a child. However, in the absence of some indication of actual risk, for example from a parent, the position will be that the child is to be regarded as not at risk. Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm. The existence of that potential will require some foundation in fact. The absence of that recognisable potential, it being that absence which the Act by its negative expression of the test in s.9(4) requires before an order can be made, will depend on the tribunal finding some factual basis for the view that there exists no risk. What will amount to a sufficient basis for such a view must, I think, remain an issue for each case, given the wide-ranging variations in circumstances which may present. 28 Here, of course, the conduct of Ms L might have readily led to a conclusion that such a risk was posed. Time, however, has now run for approximately 12 years during which such risk as may have been existent was accepted by the relevant industry professionals as so minimal as to permit Ms L to have the care and custody of her child. That position has prevailed despite, as Ms Howell reported, that there are no psychometric tools available to help determine the level of risk with female sexual offenders. 29 I consider that the facts in this case operate as an illustration of the way in which the presumption of risk in child-related employment attributed by the Act to a conviction for a serious sexual offence may be displaced. Those facts certainly would not permit a positive conclusion that she would pose a risk to the safety of children thereby preventing the Commission from making an order under the Act. While the offence involved was of a generally serious kind (s9(5)(a)), Ms L's total criminal record involves no other issues (s9(5)(e)). I have concluded that the evidence establishes to a satisfactory degree that Ms L does not pose a risk to the safety of children. It is for these reasons and, also taking into account that none of the other matters adverted in s9(5) would operate in this case against the interest of Ms L, that I made the orders set out in paragraph 4 hereof. 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.