Industrial Relations Commission of New South Wales CITATION : NSW Independent Education Union ('C') and The Commission for Children and Young People [2002] NSWIRComm 305 APPLICANT New South Wales Independent Education Union PARTIES : FIRST RESPONDENT The Commission for Children and Young People SECOND RESPONDENT Sydney Catholic Education Office FILE NUMBER: IRC5727 of 2002 CORAM: Peterson J CATCHWORDS : Child Protection - application for declaration under s9 - application for stay - serious sexual offence committed 26 years ago when applicant aged 19 years - offence proved but s556A of Crimes Act applied - respondent did not oppose stay - finding made that applicant would not pose risk to children - stay application granted. LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900 CASES CITED : A v The Commission for Children and Young People and Anor [2001] NSW IRComm 194 A v The Commission for Children and Young People (No 2) [2002] NSW IRComm 219 HEARING DATES: 10/16/2002 EXTEMPORE JUDGMENT DATE : 10/16/2002 APPLICANT Ms C Matthews UNION New South Wales Independent Education Union SYDNEY. FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr G W Moore of counsel SOLICITOR Crown Solicitor's Office SYDNEY. SECOND RESPONDENT Mr G McKay JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PETERSON J DATE: 16 OCTOBER 2002 Matter No IRC5727 of 2002 NEW SOUTH WALES INDEPENDENT EDUCATION UNION AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE AND ANOR. Application under s9 of the Child Protection (Prohibited Employment) Act 1998. DECISION (Extempore) 1 HIS HONOUR: This is an application by the New South Wales Independent Education Union on behalf of its member, "C", for an order under s9 of the Child Protection (Prohibited Employment) Act 1998, the purpose of which is to resolve any difficulty raised by that Act in connection with the applicant's employment as a teacher in a school. The first respondent to the application is the Commission for Children and Young People, and the second respondent is the employer of the teacher. I do not propose to identify the employer at this stage. 2 The general facts which relate to the matter are that the teacher has been employed for some 16 years by the employer without difficulty. The offence which has given rise to questions concerning the application of the Child Protection Act occurred some 26 years ago when the applicant was charged with the offence of indecent assault (female) and pleaded guilty to that charge. 3 The charge was found by the court to have been proved, but the court applied the terms of s556A of the then Crimes Act and did not proceed to a conviction but discharged the defendant conditionally upon entering into a recognizance in the amount of $500 to be of good behaviour for 12 months and to appear if called upon. 4 At the time of the offence the applicant was approximately 19 years of age and the victim was 15 years of age. The circumstances of the offence were that the applicant met the victim at a golf club, which were licensed premises. The applicant and the victim were consuming alcohol at the club. The applicant does not recall having known the girl before meeting her at the club. They were both well affected by alcohol. He assumed her to be 18 years of age, given her presence on licensed premises. They left the club, the girl agreeing to go parking with the applicant. Subsequently the girl left the vehicle, after the applicant had attempted to have sexual relations with her, but unsuccessfully. I mention also that arising out of those events an assault charge was laid against the applicant, but was adjourned generally. The applicant has no other criminal history and has taught successfully in schools in this State and another State for a total of 19 years. 5 The application is brought in circumstances where the respondent parties indicated to the Commission no opposition to the Commission granting a stay order pursuant to s9(6) of the Child Protection Act. However, I make some observations about applications in that regard. 6 A question has arisen as to whether the applicant is truly affected by the terms of the Child Protection Act. That question arises as a consequence of the meaning and effect of s579 of the Crimes Act, a matter which has received some attention in public proceedings in the Commission. 7 In A v The Commission for Children and Young People and Anor [2001] NSW IRComm 194, Hungerford J on 28 August 2001 delivered judgment, the effect of which was to find s579 of the Crimes Act operates to cause a person who is the subject of what I might call in broad terms a s556A result in relation to what might otherwise be a serious sexual offence for the purposes of the Child Protection Act, not to apply. 8 I do not intend in this matter to revisit the question determined by Hungerford J. I note that the judgment has been the subject of an appeal brought by the Commission for Children and Young People, and I am informed that judgment has been reserved in the appeal. 9 On one view of the matter it might be thought inappropriate that the Commission should hear a stay application in these circumstances. Principally, harmony within the court or tribunal would suggest that the appropriate course, at least pending the judgment of the Full Bench in the appeal proceedings in A, would require me to act conformably with the view expressed by Hungerford J. 10 Such an approach raises difficulties for the applicant and his employer, both of whom wish to see the applicant continuing to teach in the employer's service. If it be accepted that the s556A result achieved by the applicant 26 years ago puts him outside the scope of the Child Protection Act, but that view was later found to be incorrect having regard to subsequent judgment of the Full Bench, a consequence could be that both the applicant and the employer would have committed an offence under the Child Protection Act by continuing the applicant in employment as a teacher. 11 As I have already noted, the Commission for Children and Young People does not oppose a stay, but I accept that approach in this case as one which is entirely practical, having regard to the types of difficulties to which I have adverted. 12 I therefore consider it appropriate that I should treat the applicant for present purposes as a person who is bound by the Act, and to determine his application for a stay accordingly. 13 Section 9 of the Child Protection Act requires through subsection 5 that the Commission take into account particular matters. They relate to the seriousness of the relevant offence, the age of the applicant and the age of any victim at the time the offence was committed, the difference in those ages, the seriousness of the person's total criminal record, and any other matters thought relevant. 14 Having regard to each of those features in the light of the facts to which I have earlier referred, I consider the Commission is entitled to come to a conclusion that they do not suggest that the applicant would present a risk to children if he were to continue in teaching. That finding is one required by s9(4) of the Act, namely that the Commission is not entitled to make an order under s9 unless it considers, and I paraphrase, that the applicant does not pose a risk to the safety of children. 15 In A v The Commission for Children and Young People (No 2) [2002] NSW IRComm 219, Wright J, President adopted the view, with which I would fully agree, that the findings which I have made are necessary prerequisites to consideration of the grant of a stay. 16 On those findings I am satisfied that the Commission should stay the operation of any prohibition under the Act which impact upon the employment of the applicant as a teacher, pending final determination of the application. I order accordingly, subject to a condition which has been sought by the Commission for Children and Young People and not opposed by the applicant, in these terms, that the applicant is not to apply for or remain in any child related employment (paid or voluntary) other than his current employment with his particular employer, who appears as second respondent in the proceedings. 17 I propose to stand over the substantive proceedings for directions at 9.45am on Friday 7 February 2003. 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.