Industrial Relations Commission of New South Wales CITATION : A and Commission for Children and Young People & Anor [2003] NSWIRComm 81 APPLICANT: "A" PARTIES : FIRST RESPONENT: Commission for Children and Young People SECOND RESPONDENT: NSW Department of Education and Training FILE NUMBER: IRC4540 of 2000 CORAM: Kavanagh J CATCHWORDS : Prohibited employment - "A" a prohibited person under s5 of the Child Protection (Prohibited Employment) Act 1998 - as a person convicted of a serious sex offence - Conviction approximately 33 years ago - Application for declaration under s9 of the Child Protection (Prohibited Employment) Act by "A" that he is not a "prohibited person" - Consideration of matters relevant to the making of the Orders as defined in s9(5) of the Act - Determination that person does not pose a risk to the safety of children in accordance with s9(4) of the Act Child Protection (Prohibited Employment) Act 1998 LEGISLATION CITED : Crimes Act 1900 Industrial Relations Act 1996 "A" and Commission for Children and Young People No. 2 (2000) 104 IR 119 CASES CITED : "G" v "J" and "H" [2001] NSWIRComm 69 "R" v NSW Commission for Children and Young People [2002] NSWIRComm 101 "L" v Commission for Children and Young People [2001] NSWIRComm 134 HEARING DATES: 03/20/2003 EXTEMPORE JUDGMENT DATE : 03/20/2003 APPLICANT: Ms P F Lowson of counsel Solicitors: MacMahon Associates FIRST RESPONDENT: LEGAL REPRESENTATIVES: Mr P.F. Singleton of counsel SECOND DEFENDANT: Ms B. Charlton Department of Education and Training Solicitors: Crown Solicitor JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: KAVANAGH J Date: Thursday 20 March 2003 IRC4540 of 2000 "A" and COMMISSION FOR CHILDREN AND YOUNG PEOPLE AND ANOR Application by "A" re Child Protection (Prohibited Employment) Act 1998 EX TEMPORE DECISION [2003] NSWIRComm 81 1 In the matter of "A" (the applicant) and the New South Wales Commission for Children and Young People (the first respondent) and the New South Wales Department of Education and Training (the second respondent), the applicant seeks an order under s9 of the Child Protection (Prohibited Employment) Act 1998 (the Act), in the following terms: It is declared that the Child Protection (Prohibited Employment) Act 1998 does not apply to the applicant in respect of the offence; under the Crimes Act 1900, s71 (dealt with at Sydney Quarter Sessions on 12 March 1991). 2 On 12 March 1971, the applicant was convicted of a charge of carnally knowing a girl under the age of 16 years. Section 71 of the Crimes Act 1900 stated, at that time: Whosoever unlawfully and carnally knows any girl of or above the age of ten years and under the age of sixteen years, shall be liable to penal servitude for ten years. The applicant was given a two year "good behaviour bond" for the offence. The applicant was at the time 17 years old and the victim was 14 years old. The applicant after conviction pursued his studies, married and began a teaching career some 25 years ago. 3 Once the Child Protection (Prohibited Employment) Act 1998 was enacted, all teachers were required to make a declaration as to prior convictions. The applicant declared his conviction. The applicant, because of the conviction, became a "prohibited person" under the Act notwithstanding he had served for the last 25 years as a teacher in New South Wales. 4 The applicant, in support of the application for an Order under s9 of the Act, pleads: (i) He is a fit and proper person to engage in the profession of school teacher. (ii) He is not a person who poses a risk to the safety of children, and (iii) The matters recorded on his criminal record do not give rise to any concern for the safety of any children who are or were in his care. History 5 I put on record the history of the matter. The s9 application was litigated before Hungerford J over some eight days. His Honour then made a Declaration on 28 August 2001 (see (2000) 107 IR 211) in the following terms: 1. . . . on the true construction of the Child Protection (Prohibited Employment) Act 1998 'A' is not a 'prohibited person' as defined in s 5 thereof and is entitled to engage in child-related employment free from the operation of the said Act with respect to him. The effect of the finding by Declaration was the Act did not apply to "A". 6 Hungerford J on 13 October 2001, having issued his Declaratory Order, recalled the matter on before him and dismissed this application under s9 of the Act. He then stayed his Order dismissing the s9 Application in the following terms: The operation of a prohibition under the Child Protection (Prohibited Employment) Act 1998 in respect of 'A' is stayed pending the final determination by the Commission of his application for an order declaring that the said Act does not apply to him in respect of the offence committed by him under s 71 of the Crimes Act 1900 and dealt with at the Sydney Quarter Sessions on 12 March 1971. The effect of this Stay Order was "A" remained in his teaching position. 7 The Full Bench of the Commission in A and Commission for Children and Young People & Anor [2003] NSWIRComm 81 then heard the first and second respondents' appeal of Hungerford J's Declaratory Order of 28 August 2001. The Full Bench Judgment as to this Declaratory Order was handed down on 29 January 2003. The Orders were: 1. Leave to appeal granted; 2. Appeal upheld; 3. Declaration made by Hungerford J set aside. The Appeal Bench then ordered the initiating s9 Application to come back for consideration by this court sitting as the Commission at first instance. 8 The Child Protection (Prohibited Employment) Act 1998 (NSW) is a unique law. There has been no legislative precedent. The Industrial Relations Commission of NSW at various levels has been required to read many of the provisions of the Act. "A" has been one of the persons most affected by the necessity for the Commission, both at first instance, and on Appeal, to read the legislation and its various provisions. Hence, this application filed on 11 September 2000, has already had a hearing before the Commission in its primary and then its appellate jurisdiction and is now back before the Commission to be reconsidered. I do not say this as a criticism of any person or party, but the delay for "A" personally is most unfortunate. Consideration 9 In order to make an order pursuant to s 9 the Commission must be satisfied that: (i) The applicant is a "prohibited person" as that term is defined in the Act. (ii) That the applicant is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed by the operation of the Act. (iii) That the applicant does not pose a risk to the safety of children. 10 Section 9(5) guides the Commission in this consideration stating: 9(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, (a)(1) 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, (d)(1) 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 In addition the Commission must not make an order unless it is satisfied that the applicant does not pose a risk to the safety of children (section 9(4)). 12 I find the applicant is an employee for the purposes of the Industrial Relations Act 1996 who is liable to be dismissed by the operation of the Child Protection (Prohibited Employment) Act 1998. 13 The applicant has no criminal record other than that which brings the applicant before me: namely, the recorded conviction some 33 years ago. 14 The respondents do not oppose the s9 application but require the Commission to take into its consideration, when it is determining whether to give an Order that effectively allows the applicant to continue in child-related employment, a number of matters which it draws to the Commission's attention. Of particular note was an intervening incident which is alleged to have occurred at a school where the applicant was teaching in 1997. 15 The respondents do not attack the honesty of the applicant but question the "reliability" of some parts of his evidence, especially related to the allegation of misbehaviour which was dealt with by the Department in 1997. The Department of Education and Training issued the applicant with a caution. 16 The submissions of the respondents are well summarised in paragraph 21 of the first respondent's submission: The present case is, . . ., one which is heavily dependent upon the evidence of the applicant and the information provided by the applicant to Dr Skinner. It is a case in which he has twice fathered children by teenage girls (one 14 and the other 16 at the time of conception), has twice involved himself in a sexual affair with another person at his school (each of which, in isolation, is not a concern but may be in combination with other matters), has now married a woman 17 years younger (which, again, is not by itself a matter of concern, but may be in combination with other matters), and has recently (1997) on at least two occasions made inappropriate remarks to a 16 year old female student, which remarks are capable of supporting a suggestion of their having a sexual element. 17 The applicant does not concede from this submission all such facts are either true or proven or indeed are relevant to the Commission's consideration under the Act. The applicant addressed the matters raised in the above submission of the respondents with evidence such as to persuade me to reject all of the above submission of the respondents. As the respondents invited the Commission to take an inference from this personal profile of his life it appears to the Commission, from the evidence, "A" has lived a life taking full responsibility for his actions. 18 As to the matters arising from a school incident in 1997, it was alleged the applicant made inappropriate remarks to a teenage female student. Dr Skinner, a psychiatrist brought as an expert before this Commission by the applicant, took the history of the alleged incident in 1997 prior to the matter coming on for hearing. The respondents submit, at the time of the incident, he said to the headmaster: I have no memory of this (the conversation). 19 The counsellor of the school gave evidence related to the 1997 allegation as did the headmaster of that time. I accept the complainant in the 1997 incident was a troubled young lady. The applicant has presented himself for an analysis by a psychiatrist who gave both considered evidence and a considered report. A submission was made by the respondents' suggesting as the applicant refused to take a psychological examination required by them the Commission would find against his interests. In explanation the applicant pleads it was the view of Dr Skinner, his psychiatrist, that a psychological test would not be appropriate in his circumstance. 20 In cross-examination at the hearing and after recollection and his consideration, the applicant conceded one of the allegations could be perceived as not appropriate conduct. The respondents submit as the applicant originally denied the conversation such a variation of attitude from the applicant in giving the concession at the hearing would invite from the Commission a finding the applicant could not be relied upon as a person of good character either as to his recollections or his attitude to matters of a sexual nature. I accept the concession made by the applicant was one given by a person in a witness box who has had plenty of time to review alleged conduct and in that context I find he made an appropriate concession. I do not find such a concession or his refusal to attend upon a psychologist are matters which would lead me to consider he would therefore pose a risk to the safety of children and was not a person fit to continue in child-related employment. 21 As to the suggestion the conviction makes the applicant a person who should be prohibited from child-related employment, I note the applicant as a 17 year old male served a bond for the offence and over a period of 15 years committed no further offence. As a result, the offence was struck from the record under s579 of the Crimes Act. The offence is only revived by the Child Protection (Prohibited Employment) Act 1998 for the consideration as to whether he poses a risk and whether he should continue in child-related employment. The revival of the conviction was given consideration by the Full Bench and the facts have been canvassed at length in its judgment. The Full Bench found, although under the Crimes Act as Hungerford J considered, the criminal record was extinguished after 15 years it was, for the purposes only of the Child Protection (Prohibited Employment) Act revived. 22 I have considered the seriousness of the initial offence before the Commission - both its objective features and its subjective features. I have considered the lack of any further criminal act by the applicant. I take cognisance of the evidence "A" has been a person of good character for 33 years following the conviction. I have considered all other evidence put forward by the applicant to support a finding he is a person of good fame and character and has been so for the many years that followed after his having offended as a youth. 23 I have given consideration to the applicant's attitude to the events of 1997 at both the time concerned and when he gave evidence before the Commission. I have considered whether this event and his handling of it, read with his conviction, makes him a person who poses a risk to the safety of children. 24 The question as to what constitutes a "risk to the safety of children" has been given much judicial consideration. I am guided in my consideration by these authorities. I refer particularly to the reasoned discussion in "A" and Commission for Children and Young People No. 2 (2000) 104 IR 119 (published 27 September 2000); a judgment of this Commission in "G" v "J" and "H" [2001] NSWIRComm 69 and the reasoning of Haylen J in "R" v NSW Commission for Children and Young People [2002] NSWIRComm 101. Reference in his Honour's considered judgment is also made to the consideration by Peterson J in "L" v Commission for Children and Young People [2001] NSWIRComm 134. 25 The effect of an Order under s9 is at large. It is a declaration the applicant, within our community, poses no risk to the safety of children. The Commission must consider whether all children be they students or others in the community would be exposed to the chance, or dangerous chance, of injury if the applicant was held to be not a "prohibited person" and therefore able to engage in child-related employment. 26 I have considered the person of the applicant, his age at the time of the offence and the age of the victim, the differences in age between the persons concerned and the applicant's criminal record. The Commission also takes into account the 1997 issue raised by the respondents. The Commission notes the applicant's teaching record which it finds is exemplary over 25 years and also takes into account the evidence of the applicant's good character as an adult. 27 I am persuaded the applicant does not pose a risk to the safety of children. Accordingly, I am satisfied on the material before me that I should grant the order sought by the applicant. Order: It is declared that the Child Protection (Prohibited Employment) Act 1998 does not apply to the applicant in respect of the offence under the Crimes Act 1900, s71 (dealt with at Sydney Quarter Sessions on 12 March 1991). 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.