Industrial Relations Commission of New South Wales in Court Session CITATION : "A" v Commission for Children and Young People & Anor [2001] NSWIRComm 194 APPLICANT "A" PARTIES : FIRST RESPONDENT Commission for Children and Young People SECOND RESPONDENT Director-General, Department of Education and Training FILE NUMBER: IRC 4540 of 2000 CORAM: Hungerford J Child Protection - Whether a person was a "prohibited person" so as to be excluded from child-related employment - Prior conviction for a "serious sex offence" - Operation of earlier legislation that conviction to be disregarded for all purposes whatsoever and of no legal force or effect - Crime-free period of more than 15 years since recognizance entered into - Whether later and earlier statutes inconsistent - General common law rules of statutory construction - No inconsistency found - Both statutes can stand together - "Conviction" in later statute to be construed as limited to one which is active or operative and with legal force and effect - Person found not to be a "prohibited person" - Entitled to engage in child-related employment - Declaration made to that effect. CATCHWORDS : Practice and Procedure - Application for declaration of right - Question of statutory entitlement arising during proceedings before the Commission - Entitlement related to the matter pending before the Commission - Declaratory order only within jurisdiction of Commission in Court Session - Reconstitution of Commission as the Commission in Court Session to deal with application for declaratory relief. Statutory Interpretation - Whether inconsistency between earlier and later enactments - General common law rules of construction - Retrospective operation of statute so as to affect accrued rights. Child Protection (Prohibited Employment) Act 1998 s 3 s 5 s 6(1) s 6(3) s 8(2) s 9(1) s 9(6) s 12(1) Commission for Children and Young People Act 1998 Crimes Act 1900 s 3 s 66C s 71 s 579 Pt 16 Sch 2 Crimes (Amendment) Act 1961 LEGISLATION CITED : Criminal Records Act 1991 s 7(1) Industrial Relations Act 1996 s 154(1) s 176(3) Interpretation Act 1987 s 30(1)(b) and (c) s 30(4)(b) s 34(1)(a) Interpretation Act of 1897 (repealed) s 8(b) Ombudsman Amendment (Child Protection and Community Services) Act 1998 Athlumney, Ex parte Wilson [1898] 2 QB 547 Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 Ford v SAS Trustee Corporation (2000) 98 IR 444 Glass Workers' Redundancy (State) Award, Re [1998] NSWIRComm 297 Hill v Hall (1876) 1 Ex D 411 CASES CITED : Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales Branch (1998) 89 IR 391 Mathieson v Burton (1971) 124 CLR 1 Maxwell v Murphy (1957) 96 CLR 261 R v Kidman (1915) 20 CLR 425 R v Sales (1989) 42 A Crim R 297 Royal Automobile Club of Australia, Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282 Saraswati v R (1991) 172 CLR 1 Shephard, Re Applications of [1983] 1 NSWLR 96 Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 36 NSWLR 594, (1995) 59 IR 36 HEARING DATES: 04/23/2001; 05/04/2001 DATE OF JUDGMENT: 08/28/2001 APPLICANT Ms P F Lowson of counsel Solicitor: Mr P MacMahon MacMahon Associates FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr P F Singleton of counsel Solicitor: Mr I V Knight Crown Solicitor SECOND RESPONDENT Ms M Baker and Ms B Charlton Department of Education and Training JUDGMENT: - 34 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Tuesday, 28 August 2001 Matter No IRC 4540 of 2000 "A" v COMMISSION FOR CHILDREN AND YOUNG PEOPLE AND DIRECTOR-GENERAL, DEPARTMENT OF EDUCATION AND TRAINING Application pursuant to section 9(1) of the Child Protection (Prohibited Employment) Act 1998 and application under section 154(1) of the Industrial Relations Act 1996 for a declaration of right. JUDGMENT [2001] NSWIRComm 194 1 The applicant, known in these proceedings as "A", has moved the Court to make a declaration of right under s 154(1) of the Industrial Relations Act 1996 to the effect that he is not a "prohibited person" within the meaning of that expression in the Child Protection (Prohibited Employment) Act 1998 so that that Act does not apply to him in relation to child-related employment. "A" is currently employed as a secondary school teacher with the Department of Education and Training. If he were to be a prohibited person, so as to make the statute applicable to him, he would be unable to remain or to be continued in such employment unless an order were made by a relevant tribunal, on his application as a prohibited person, declaring the statute was not to apply to him because he did not pose a risk to the safety of children. The importance, therefore, of the status of "A" as a prohibited person is obvious. 2 The basis for the declaration claimed was that the Child Protection (Prohibited Employment) Act, which otherwise operated so as to affect the applicant's employment by making him a prohibited person because of a prior conviction which the statute described as a "serious sex offence", did not however apply to "A" by reason of the provisions of s 579 of the Crimes Act 1900. That section, as was submitted for the applicant, required the earlier conviction to "be disregarded for all purposes whatsoever" and to "be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect". The sole issue, then, raised by the present application concerned the question as to the operation of and interaction between the relevant provisions of the Child Protection (Prohibited Employment) Act and the Crimes Act. 3 The position taken by the first respondent, the Commission for Children and Young People, was that the competing statutory provisions were inconsistent and where the earlier enacted s 579 of the Crimes Act yielded to the later enacted Child Protection (Prohibited Employment) Act; in any event, s 12(1) of the latter Act was a complete answer against the declaration sought because it explicitly provided that that statute "prevails to the extent of any inconsistency between it and any other Act or law". The second respondent, the Director-General of the Department of Education and Training, also opposed the declaration being made for the same reasons as did the first respondent. 4 Seen in that way, it may be thought the single issue for determination is relatively confined and straightforward. It comes down, it seems to me, to a pure question of statutory construction and the application of the ordinary principles to a determination of the primacy of competing legislation. However, due to the statutory provisions concerned and the apparent purposes of the respective statutes, the resolution of the problem has its own complexities. Even so, the parties were agreed at least as to the context in which the issue arose and the facts necessary to enable a full consideration of the legal question. It is convenient first to refer to that context as to how this situation came about in light of the competing statutory provisions and the course the proceedings then took. 5 On 3 July 2000 the Child Protection (Prohibited Employment) Act commenced (see Government Gazette No 73, 23 June 2000, p 5109) and the transitional provisions thereof in s 6(3) provided, in effect, that a prohibited person in child-related employment was allowed to remain in that employment for three months if that status was disclosed to the employer within one month of the commencement date; under s 8(2) thereof, an employer was allowed to continue a prohibited person in employment for three months after the commencement date if all reasonable steps available be taken to prevent or restrict the person from having unsupervised contact with children during that three-month period. "A" made his application on 11 September 2000 to the Commission pursuant to s 9(1) of the Child Protection (Prohibited Employment) Act for an order declaring that that Act did not apply to him in respect of a specified offence. On 14 September 2000, I made an order pursuant to s 9(6) staying the operation of the statutory prohibition on the applicant's employment pending the final determination of the matter. Hearing dates for that purpose were fixed for 12, 13 and 20 March 2001. 6 The claim for the declaration arose during the course of the hearing before me, sitting as the Commission, on 20 March 2001 of final submissions in the matter of the application pursuant to s 9(1). It is unnecessary for present purposes to further state the details involved, other than to indicate that on 12 March 1971 the applicant was dealt with by the Court of Quarter Sessions at Sydney on a charge that he contravened in January 1970 when he was 17 years of age the then s 71 (now s 66C) of the Crimes Act by carnally knowing a girl under the age of 16 years. On pleading guilty, he was bound over to be of good behaviour and appear for sentence if called upon within a period of two years with the condition that he place himself under the supervision and guidance of the Adult Probation Service. The applicant complied with the terms of the recognizance and has not since transgressed. 7 During her final submissions on 20 March 2001 in reviewing applicable statutes, Ms P F Lowson of counsel for the applicant sought and was granted an adjournment to enable consideration of the implications of s 579 of the Crimes Act. In the result, at a directions hearing on 28 March 2001, counsel filed in court the present application for declaratory relief under s 154 of the Industrial Relations Act. Mr P F Singleton of counsel for the first respondent and Ms M Baker with Ms B Charlton for the second respondent, very properly and fairly, consented to that course. Although the original proceedings were before the Commission for an order pursuant to s 9(1) of the Child Protection (Prohibited Employment) Act on the application of "A" as a prohibited person, it emerged that the relief finally sought was in the nature of a declaration that the applicant was not such a prohibited person. If successful, of course, the applicant would have no need to pursue his original s 9(1) application because not being a prohibited person the Child Protection (Prohibited Employment) Act would not apply to him notwithstanding the earlier offence in January 1970 found proven against him and for which in March 1971 he was placed on a bond. Section 154 of the Industrial Relations Act requires relief of the nature now sought to be exclusively within the declaratory jurisdiction of the Commission in Court Session and, so, and with the concurrence of the parties at the directions hearing on 28 March 2001, I reconstituted as the Commission in Court Session pursuant to s 176(3) of the Industrial Relations Act to deal with the new application. The matter so proceeded to hearing on 23 April 2001 with final written submissions by the parties being filed on 4 May 2001 when the decision was reserved. 8 The respondents initially took the position that the Court did not have jurisdiction to make the declaration sought. However, at the hearing they conceded that indeed jurisdiction did exist. I think the concession was properly made: see Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at pp 126-127; Re Glass Workers' Redundancy (State) Award [1998] NSWIRComm 297; and Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales Branch (1998) 89 IR 391. In Ford v SAS Trustee Corporation (2000) 98 IR 444, I had occasion to make a declaration as to a person's rights under the Police Regulation (Superannuation) Act 1906 in relation to his entitlement to certain leave and, as to the existence of jurisdiction, observed (at p 476) : The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. 9 In the present case, the Commission has power to make an order under s 9 of the Child Protection (Prohibited Employment) Act declaring that that Act is not to apply to a particular person who is a prohibited person; central to that determination is the status as such of the person concerned. The declaration sought here from the Court, in my view, relevantly relates to a matter within the Commission's jurisdiction, namely, the matter of the making of an order under s 9 in relation to the applicant as a person alleged to be a prohibited person. It follows, I am satisfied, that the Court has power to make the declaration sought under s 154 of the Industrial Relations Act as to whether the applicant is a prohibited person. 10 Further, the respondents conceded, again properly in my view, that if it be found the applicant was not a prohibited person then the declaration should be granted even though such relief be discretionary. The circumstances for the grant of declaratory relief, I agree, are discretionary: see Ford (98 IR at pp 450-451). In pointing out that the applicant originally believed the Child Protection (Prohibited Employment) Act applied to him and so disclosed the earlier offence to the employer, Ms Lowson said the application under s 9 was made because without the protection of such an order the applicant bore the risk of prosecution for an offence against s 6(1) of the statute for which the maximum penalty was 100 penalty units or imprisonment for 12 months, or both. Counsel submitted : The applicant submits that this case appropriately falls within the principles applicable to the granting of a declaratory order. The question raised by the application is not theoretical. It directly affects the applicant's action both in relation to the proceedings commenced pursuant to s 9 of the Act and more broadly and more importantly in relation to his ongoing employment. Similarly the applicant has a real and direct interest in the outcome of the application. Finally the Commission for Children and Young People and the Department of Education and Training, being respondents in the Commission proceedings, are properly interested parties in the declaratory order application and are in a position to address any of the issues raised by this application. 11 I am satisfied that if the applicant be found not to be a prohibited person then it is only appropriate to grant to him the relief sought. I accept the force in that respect of the circumstances as outlined by Ms Lowson and the concession made by the respondents. 12 The Child Protection (Prohibited Employment) Act was assented to on 8 December 1998 and, as I have said, commenced on 3 July 2000. It is necessary to review its main provisions as they affect the present issue. As its long title states, it is "An Act to prohibit the employment in child-related employment of persons found guilty of committing certain serious sex offences; and for related purposes". The wide-ranging scope of the statute may be seen from the definition in s 3 of "child-related employment", 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. (par (a) (iii) has direct application in the present case.) 13 Section 3 defines "conviction" in this way : conviction includes a finding that the charge for an offence is proven even though the court does not proceed to a conviction. 14 Of present importance, s 3 defines a "prohibited person" by reference to s 5 which identifies such a person as one "convicted of a serious sex offence". Section 5 states : 5 Prohibited persons (1) For the purposes of this Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of this subsection. (2) For the purposes of this Act, a person is not a prohibited person in respect of an offence if an order in force under section 9 declares that this Act is not to apply to the person in respect of the offence. (3) In this section: serious sex offence means (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. 15 The offences relating to prohibited persons, and which establish the prohibitions on such a person applying for, undertaking or remaining in child-related employment and in an employer commencing or continuing in child-related employment a prohibited person, are dealt with in Pt 2, specifically ss 6 and 8 therein; s 7 requires an employer to ascertain whether an employee is a prohibited person and establishes offences in respect thereof. Part 3 - Exemptions by declaration, contains the important provisions of s 9, in the following terms : 9 IRC and ADT may make declarations concerning prohibited persons (1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence. (2) A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. (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. (6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter. (7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or in support of the making of the order. (8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal. (9) Orders under this section may be made subject to conditions. (10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order. (11) The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs, (b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings. 16 Part 4 (ss 10 to 16) contains various miscellaneous provisions - an employer who removes a prohibited person from child-related employment may transfer the person to employment of a different kind: s 10; the statute binds the Crown in right of New South Wales: s 11; the manner for the taking of proceedings for an offence and offences by corporations, a director or manager thereof are specified: ss 13 and 14; regulations may be made necessary or convenient to be prescribed for carrying out or giving effect to the statute (none have as yet been made): s 15; and the statute is to be reviewed by the Minister to determine whether its policy objectives remain valid and whether its terms remain appropriate for securing those objectives: s 16. Importantly for the argument in the present matter, s 12 provides : 12 Relationship with other Acts and laws (1) This Act prevails to the extent of any inconsistency between it and any other Act or law. (2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or employee contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment in accordance with this Act. 17 Section 579 of the Crimes Act, said by the respondents to be inoperable for the purposes of serious sex offences dealt with in the Child Protection (Prohibited Employment) Act but relied on by the applicant to exclude his status as a prohibited person, is in the following terms : 579 Evidence of proceedings dealt with by way of recognizance after 15 years (1) Where, following the conviction of any person for an offence or a finding that a charge of an offence has been proved against any person, whether the conviction or finding was before or after the commencement of the Crimes (Amendment) Act 1961: (a) sentence in respect of the conviction was suspended or deferred upon the person entering into a recognizance or, in substitution for sentence in respect of the conviction, the person was required to enter into a recognizance, or no conviction in respect of the finding was made and the person was discharged conditionally on his or her entering into a recognizance, and (b) a period of fifteen years has elapsed since the recognizance was entered into: (i) without the recognizance having been forfeited during that period or a court having found during that period that the person failed to observe any condition of the recognizance, and (ii) without the person having, during that period, been convicted of an indictable offence on indictment or otherwise or of any other offence punishable by imprisonment (otherwise than under section 82 of the Justices Act 1902 as amended by subsequent Acts) or without a finding during that period that a charge of such an indictable or other offence has been proved against the person, the conviction or finding shall, where that period expired before the commencement of the Crimes (Amendment) Act 1961, as on and from that commencement, or, where that period expires or has expired after that commencement, as on and from the expiration of that period: (c) be disregarded for all purposes whatsoever, and (d) without prejudice to the generality of paragraph (c), be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect. Without prejudice to the generality of the foregoing provisions of this section, any question asked of or concerning that person in or in relation to any criminal, civil or other legal proceedings otherwise than by his or her counsel, attorney or agent or other person acting on his or her behalf may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into. (2) Notwithstanding the provisions of subsection (1), where in any criminal, civil or other legal proceedings the person first referred to in that subsection, by himself or herself, his or her counsel, attorney or agent or other person acting on his or her behalf, otherwise than in answer to a question that can, in accordance with the last paragraph of that subsection, be answered in the negative, makes an assertion that denies the fact that the conviction or finding took place or that the recognizance was entered into, then the conviction, finding or recognizance is admissible: (a) in those proceedings, as to the character, credit or reputation of the person so referred to, (b) in any prosecution for perjury or false swearing founded on the assertion. The non-disclosure of the conviction, finding or recognizance in the making or giving of a statement or evidence as to the good character, credit or reputation of the person so referred to shall not of itself be taken, for the purposes of this subsection, to mean that the statement or evidence contains such an assertion. (3) In this section legal proceedings includes any application for a licence, registration, authority, permit or the like under any statute. (4) This section does not affect the operation of section 55 of the Defamation Act 1974, or the operation of section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995, for the purposes of section 55 of the Defamation Act 1974. 18 Section 579 appears in Pt 16 of the Crimes Act which, by reason of its mention in the Second Schedule thereof, makes effective s 3 of the statute to this effect : 3 Application of certain Parts of Act The sections mentioned in the Second Schedule, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried. 19 It should be added that the purpose of the Crimes Act, as its long title states, is "An Act to consolidate the Statutes relating to Criminal Law". 20 For the sake of completeness only, I interpose reference to the Criminal Records Act 1991 as another piece of legislation, with s 579 of the Crimes Act, concerned to limit the effect of a person's conviction for a relatively minor offence if the person completes a period of crime-free behaviour. It does so by making the relevant conviction "spent". However, the Criminal Records Act in s 7(1), amongst other specified offences, excludes from its operation convictions for sexual offences so that it may be disregarded for present purposes in considering the Child Protection (Prohibited Employment) Act. Attention, therefore, is limited to the effect of s 579 of the Crimes Act. 21 The Child Protection (Prohibited Employment) Act was enacted cognately with two other bills which became the Commission for Children and Young People Act 1998 and the Ombudsman Amendment (Child Protection and Community Services) Act 1998. It is apparent that the three pieces of legislation are historic and unique in their terms. As the Minister observed in moving the second reading of the bills (Hansard, Legislative Assembly, 21 October 1998, p 8739), they "responded to key recommendations of the Wood royal commission paedophile inquiry"; the Minister added (at p 8742) : The Child Protection (Prohibited Employment) Bill (No 3) will implement recommendation 139 of the Wood royal commission. Consultation on the bill has been extensive. The object of the bill is to prohibit persons with convictions for serious sexual offences from working in positions of child-related employment. Its provisions form an integral part of the employment screening system, that are low cost and are easily undertaken by employers. Under the bill, all current and prospective employees will be asked to declare whether they have any convictions for a serious sex offence. If they do, they will be prohibited from applying for, or continuing to work in, positions involving direct unsupervised contact with children. Sexual offences that have been decriminalised, and offences that fall within the category of "act of decency" but are not of a sexual nature, are not caught by the provisions of the bill. There will be a public education campaign when the bill is proclaimed to assist employers and employees become aware of their new responsibilities. ... Together, these three bills represent a major step forward for the advancement of children's interests and their protection from harm. Acting on the recommendations of the royal commission gives us the chance to ensure the best possible protection for our children. The proposals I have outlined today have been refined through extensive consultation with all interested stakeholders. The Government believes that the best possible response has been made to the original recommendations of the Wood royal commission and to the range of issues raised in subsequent consultations. 22 However, during the second reading debate in the Legislative Council (Hansard, Legislative Council, 12 November 1998, p 9768) the Hon Patricia Forsythe indicated (at p 9771) the Opposition's support for the bills but, in referring to the role of the Commission for Children and Young People (the first respondent here) in the employment screening process, observed (at p 9775) : Getting the employment screening process right is fundamental to the commission's success and to balancing the rights of children to be protected with the rights of employees. That balance may be a fine one, and time will tell. ... The last thing we need is to throw out the rights of employees while enhancing the rights of children. ... Screening procedures are built upon the need to protect children and acknowledge employees' rights. 23 Ms Forsythe added, in the context of "the balance" referred to earlier, the following specific comments as to the objective of the subject Act (at p 9776) : I now turn to the Child Protection (Prohibited Employment) Bill (No 3). At first glance this bill seems simple and objective. Its intent is to prohibit the employment of any person convicted of a serious sex offence in child-related employment. The person is to be classified as a prohibited person. Under the bill an employer must seek a disclosure as to whether a person employed in a child-related role is a prohibited employee. The employer must take action to remove the employee from child-related work. 24 During the same debate, the Hon P T Primrose issued the following warning (at p 9778) : I support the legislation, but add a note of caution, which, I am sure, will be alluded to by other honourable members. I doubt that any member of this Chamber or, indeed, the overwhelming bulk of our community would object to the overall aims or goals of the proposed legislation. Considerable consultation has taken place. This groundbreaking legislation highlights a number of antinomies in the debate about rights, freedoms and so on, which point to the need for extensive consultation. ... ... It is vital when considering this legislation to make it clear that anyone who raises concerns about liberties within our society is not a paedophile and does not support paedophilia, and that other valid concerns and rights have to be taken into account. In this debate there must be clear, open and honest acknowledgement of the rights of everyone. 25 Section 579 of the Crimes Act has a longer statutory history. It was first enacted by the Crimes (Amendment) Act 1961 and consisted of sub-ss (1), (2) and (3) as in their present terms; by the Defamation Act, 1974, sub-s (4) was added and later the then reference therein to "section 23 of the Evidence Act, 1898" was replaced by the Evidence (Consequential and Other Provisions) Act 1995 with "section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995". It has remained in that form to the present time. 26 In moving the second reading of the amending bill in 1961, the then Minister observed during the debate (Hansard, Legislative Assembly, 29 November 1961, 3387 at p 3388) : The final matter covered by the bill arose from representations made by the Law Society. It was submitted that after a period of fifteen years a person who has been given the benefit of a bond and subsequently has not transgressed, should be regarded as having a clean record and should not have the brand of Cain attached to him for life. Justice demands such a provision. Suppose a young man of 16 or 17 years of age were brought before the court, given a bond and then released on his own recognisance. This fact gives an indication of the nature of the offence. Certainly, it points to the fact that it was not a substantial transgression. Some years later this person might when applying for a licence of some kind or another be required to complete an application form. Thus his past record might come before a licensing court, or the organisation to which his application is directed, although in the intervening period he has not transgressed and has been a first-class citizen. It should be emphasised that the example given by the Minister is completely consistent with the circumstances of the offence committed here by "A", how he was dealt with by the Court of Quarter Sessions and his subsequent record. It now comes to confront him 30 years later, on the respondents' case, on the passage of the Child Protection (Prohibited Employment) Act as a prohibited person. 27 The parties provided written submissions outlining their respective positions and supplemented them orally at the hearing. May I say that in facing the present task I found the submissions to be most helpful and I am grateful to counsel for their assistance in dealing with the present statutory conundrum; and one, I might add, of quite some importance having in mind the stated purposes of the two sets of competing legislation. 28 On the one hand, it seems to me, the Crimes Act in s 579 is concerned to do justice to a person who transgressed more than 15 years ago by committing an offence for which the benefit of a bond was allowed for what was an offence found by the sentencing judge not to be a substantial transgression. On the other hand, the Child Protection (Prohibited Employment) Act has the purpose of prohibiting the employment in child-related employment of persons found guilty of committing a serious sex offence ("serious" in the sense as deemed by the legislation of the offence but not, I emphasise, in terms of the degree of criminality of the offender in the circumstances as found by the sentencing judge), without any explicitly stated time-limitation period, in order to protect children against possible harm unless a relevant tribunal finds that the person concerned does not, according to specified criteria, pose a risk to the safety of children. It would be all too expedient, but I think a denial of a proper consideration of the applicant's situation in terms of his now crystallised rights under s 579 for in excess of 15 years, to look at the apparent purpose of the Child Protection (Prohibited Employment) Act and to find he is a prohibited person simply because he was convicted as having committed the subject offence. Thus, one must, on the approach I consider proper, review the essential interaction between the competing statutes to ascertain according to the ordinary rules the respective limits of their operation. 29 Ms Lowson's primary position was straightforward. Counsel submitted that because s 579 laid down that the applicant's conviction or finding of guilt was to be disregarded "for all purposes whatsoever", then, on the ordinary meaning of those words, which are of the widest possible application, the prior offence in January 1970 "is to be disregarded for all purposes including statutory provisions, which in turn means that it is to be disregarded for the purposes of the Child Protection (Prohibited Employment) Act". Counsel relied on what Kirby P said in R v Sales (1989) 42 A Crim R 297 at p 298 as to the effect of s 579, as follows : I am also concerned about the use made by the sentencing judge of the previous conviction of the applicant. That conviction occurred long ago in 1972. It should not have been taken into account: see Crimes Act 1900 (NSW), s 579. The instruction of Parliament is clear. It is to be "disregarded for all purposes whatsoever". People should be entitled to live down such old convictions. The trial judge should not, in my opinion, have had any regard whatever to the spent conviction and sentence imposed in respect of it out of deference to Parliament's instruction in that regard. 30 The essential submission of Mr Singleton by reference to the various statutory provisions was that the answer to the present question was to be found in "the intention of the Parliament in enacting the Child Protection (Prohibited Employment) Act". It was put that "the two enactments cannot be given full and unqualified application to the applicant" so that they were "inconsistent"; it was emphasised by Mr Singleton that neither party suggested the repeal, either expressly or by implication, of s 579 by the Child Protection (Prohibited Employment) Act, rather the present case raised an instance of limited inconsistency. Counsel referred to the purpose of that Act, the specificity of its terms compared to s 579 of the Crimes Act and the express words in s 12(1) as demonstrating clearly, as counsel put, "that s 579 yields and the present application for a declaration should be refused". Indeed, and although certain maxims of statutory construction could be called in aid to support his proposition, counsel relied upon the terms of s 12(1) as being "a complete answer to the present application and alone requires the dismissal of the application". However, in noting that the same result would be produced by an application of the maxims of statutory construction, counsel added in his written submissions : 16. The first rule is "the usual rule that when there are two public general Acts with inconsistent provisions the later Act prevails, and all the more so if its provision is express and that of the earlier Act is only implied" ... This does not mean that the earlier provision is repealed: it means only that the earlier enactment will yield in a particular instance of inconsistency. 17. The "cardinal principle" in dealing with inconsistency within Act is "that if there are two inconsistent enactments, it must be seen if one cannot be read as a qualification of the other" ... 18. The maxim generalia specialibus non derogant is ordinarily applied where an earlier specific statute operates inconsistently (in a given instance) with a later general statute. The cases therefore contain examples in which it has been held that a later general statute did not impliedly repeal an earlier specific statute but, rather, was impliedly subject to the earlier specific statute. 19. In the present case the opposite situation arises. The earlier enactment, s 579 of the Crimes Act , is a general enactment. It applies to all convictions leading to a recognisance (as described in the section). The later statute, the CP Act , is the specific one: it applies to only a special few categories of convictions (for serious sex offences) and only for a special purpose (child related employment). 20. It is easy to read the earlier, general enactment as being subject to the later, specific enactment. This is a case in which it is not necessary to choose between leges posteriores priores contrarias abrogant and generalia specialibus non derogant: the application of each maxim produces the same result. (case references omitted) 31 Ms Charlton for the second respondent adopted the submissions of Mr Singleton. 32 The fundamental propositions of counsel were developed by them in detailed written submissions and with extensive reference to the applicable authorities. It is impracticable here to repeat all that was put, other than to identify the main points and the thrust of the respective cases. 33 In attending to the key issue of consistency as between the competing statutory provisions, Ms Lowson submitted that the respondents' argument really proceeded on the basis that the Child Protection (Prohibited Employment) Act must apply to the applicant merely because of his prior conviction in 1971. Counsel reasoned it this way : 5. In further addressing the allegation by the respondent of inconsistency between the provisions, the applicant submits that the exclusion of persons covered by section 579 from the operation of the Act is in fact consistent with that Act. The Act uses the blunt instrument of criminal convictions to remove certain persons from employment for the purposes of protecting children. The Act cannot, and does not purport to, remove all persons who may pose a risk to the safety of children from child-related employment. It is consistent with the Act that a person whose criminal behaviour, penalty imposed, and subsequent rehabilitation is recognised by operation of a provision in a criminal statute as diminishing the seriousness of the offence is not relevantly caught by the prohibited person provisions of the Act. 6. In asserting inconsistency between the Act and section 579 the respondent fails to apply the principle that, in considering the operation of two State Acts there is a presumption that the legislature intended both to operate. ... 7. In assessing how two Acts may interrelate a court must examine the language of the Acts; the resolution of any question of consistency is not to be based upon the application of a maxim. ... (case references omitted) 34 Ms Lowson concluded with the general proposition that the respondents had not established any inconsistency. Even if inconsistency were found, said counsel, such that the Child Protection (Prohibited Employment) Act impliedly repealed s 579, then s 30 of the Interpretation Act 1987 operated to preserve the rights afforded to the applicant by s 579. In the result, Ms Lowson summarised the position thus : The applicant submits that at its highest the respondent's case is put on the basis that, because the Act is intended to protect children, the Commission should infer an inconsistency which in turn should be addressed by repealing section 579 so as to take away a crystallised right earned and enjoyed by the applicant since March 1986. As such it cannot succeed and the applicant is entitled to the declaratory orders sought. 35 The significance of s 12(1) in resolving the present issue in favour of the respondents was said by Mr Singleton to involve the question of the legislature's intention in enacting it. Guidance in that respect was to be obtained from the legislature's "manifest policy that child protection was more important than the cleaning of criminal slates". Therefore, so counsel said, "the Parliament in s 12 intended to sweep away the effect (in the limited context of child-related employment) of all and any laws upon which a person might otherwise be able to rely to avoid the full impact of the CP Act." Although the applicant here became eligible in March 1986 for the benefits which s 579 bestowed, such that, as Ms Lowson had said, those rights had "crystallised", Mr Singleton submitted that no different result arose than if the period of 15 years had not been completed before the commencement of the Child Protection (Prohibited Employment) Act. Mr Singleton reasoned the matter in the following way : 11. In considering whether or not a different result arises in cases in which the 15 year period mentioned in s 579 expires before the commencement of the CP Act it is relevant to consider the nature of the benefit conferred by s 579. The nature of that benefit is not one - such as the annulment of a conviction or a pardon - that crystallises or is completed at a particular point in time. Rather, it is a benefit that commences at a particular point in time and continues thereafter (to be exercised from time to time when the need arises). Unlike an annulment or a pardon, which is more fundamental, the benefit conferred by s 579 must be exercised from time to time. Even though that continuing benefit might, because of s 30 of the Interpretation Act 1987, survive the repeal of s 579 by legislation amending the Crimes Act (a question that need not be decided here), the benefit only exists to the extent that s 579 provides. In other words, the benefit does not "take root" but remains dependant on, and sourced to, s 579. 12. Even if it be assumed that the benefit conferred by s 579 on the present applicant was a substantive right that "crystallised" in 1986, whenever the issue arises (as it does now) he can only avail himself of the benefit by relying on s 579. (In this respect it would not matter whether s 579 remained on the statute books or had been repealed and the reliance was coupled with reliance on s 30 of the Interpretation Act 1987.) Even though he need not declare s 579 each time he relied on it, there would nevertheless be such reliance. In other words, once the crystallisation occurs the right remains a statutory right, not some right of another or more fundamental nature divorced from the Crimes Act . Thus the exercise of the right entails reliance on s 579. Thus a conflict arises between s 579 and the CP Act . 13. The benefit conferred on the present applicant by s 579 - even if it "crystallised" in 1986 and even if by 1986 the section had "done its work" - is the product of s 579. If that benefit has the effect of allowing the applicant to work in child-related employment it does so because s 579 has that effect. That would be an effect in direct contradiction of the effect of the CP Act . Section 579 of the Crimes Act therefore conflicts with the CP Act even if the benefit it conferred had "crystallised" in 1986. 36 Finally, in emphasising the role played by s 12(1) of the statute, Mr Singleton submitted : 15. Subsection 12(1) expressly provides for "any" other enactment to yield to the CP Act . "Any" is not a term that merely implies that s 579 is covered: it expressly provides that s 579 is included. It expressly provides that every statutory provision ever (previously) enacted by the Parliament is included. As noted ... such an express provision does not need to make specific reference to individual earlier enactments. 16. All that need by implied (if implication is needed at all) is that s 12 means what it says and that where s 12 provides for the CP Act to prevail over s 579 it also provides that the CP Act prevails over the effect and operation of s 579 and that therefore the benefit conferred by s 579 will not stand in the way of the full operation of the CP Act . 17. In this case what falls for determination is whether or not the effect and operation of s 579 is inconsistent with the effect and operation of ss 5 and 6 of the CP Act . If there is an inconsistency then there is no doubt that s 12 expressly provides that the CP Act overrides s 579. 37 The present task confronting the Court is the effect the two State Acts concerned have upon each other, that is, whether there is any inconsistency between them. If there is, then, in my view, s 12(1) of the Child-Protection (Prohibited Employment) Act would operate to prevail over s 579; if there is not, then, in my view, the applicant would be entitled to the declaration in the terms sought. In Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 36 NSWLR 594 at p 604; (1995) 59 IR 36 at p 45, I made the general observation (with which Cahill Dep CJ agreed) in considering whether inconsistency existed between two State statutes that I regarded "the primary approach under the ordinary rules of interpretation as being the very strong presumption that the legislature had no intention of contradicting itself by enacting the later statute but intended both statutes to operate". Reliance for that proposition, which I continue to regard as the correct position, was placed on Re Applications of Shephard [1983] 1 NSWLR 96 at pp 106-107 and Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268 at p 276 per Fullagar J. In Butler, Kitto J observed (at p 280) that "the question must be whether they could stand together, 'live together'". This approach to the way in which apparently competing statutory provisions were to be viewed, was subject to the following comment by Gaudron J in Saraswati v R (1991) 172 CLR 1 at pp 17-18 : It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other ...More particularly, an intention to affect the earlier provision will not be implied if the later is of general application ... and the earlier deals with some matter affecting the individual ... Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation. The position was stated by Lord Selborne in Seward v The "Vera Cruz" (1884) 10 App Cas 59 at p 68, as follows : "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so." 38 The recurring nature of the problem, as manifested in the present case, and the approaches available to its resolution were, in my respectful opinion, helpfully identified by Kirby P (with whom Clarke and Handley JJ A agreed) in Royal Automobile Club of Australia, Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282 at pp 292-293 under the rubric of "Reconciling incompatible statutory duties", in the following way : The problem of reconciling apparently incompatible duties imposed by different statutes, is inherent in our system of legislation. Conflicts arise between duties imposed by Federal and State and surviving Imperial statutes. In respect of inconsistencies between a law of a State and a law of the Commonwealth, s 109 of the Australian Constitution provides its own formula for resolving the inconsistency: see Majik Markets Pty Ltd v Brake & Service Centre Drummoyne Pty Ltd (1991) 102 ALR 621 at 630. So far as conflicts between the obligations imposed by differing State statutes are concerned, such conflicts tend to arise from the very way in which statutes are made. Typically, statutes address a particular subject-matter, often in a comprehensive way. Major areas of conflict with earlier or other statutory provisions may be addressed in terms, for example, by the express repeal of an earlier statute or by saving provisions of which s 317JA(6) of the Local Government Act 1919 is an illustration. Inevitably, however, because statutes are made in respect of different subject matters at different times, it has proved impossible to ensure against the imposition of contradictory obligations either by the terms of successive statutory provisions or by action envisaged under those provisions. In some jurisdictions an attempt is made to reduce the risk of such conflicts by the adoption of codification of the law, either comprehensive or with respect to particular subject-matters of legal regulation. But, even within a comprehensive code, it is possible to enact provisions involving an unintended conflict of obligations. Codes, encyclopaedias of legal provisions and nowadays computers can reduce the risk that incompatible obligations will be imposed by statute. But occasionally, with the best will in the world, an instance of oversight will be established. Two statutory provisions will then be presented which appear to impose or contemplate contradictory duties. Necessarily, the common law has provided rules by which such conflicts are to be reconciled. Those rules are found in the canons of statutory construction. One of them provides that a later provision, inconsistent with an earlier provision, will be taken to have repealed the earlier provision. It invokes the maxim leges posteriores priores contrarias abrogant: see, eg, R v Chalak [1983] 1 NSWLR 282 at 284 and Re Application of Shephard [1983] 1 NSWLR 96. In the latter decision it was held that a repeal by implication should not be lightly inferred and should not be found unless it is inevitable and unless the later statute is clearly and indisputably contradictory to the former: see Windeyer J in Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268 at 290. Another rule of the common law provides that a statute dealing with special or particular subject matter will be taken to provide its own regime to the exclusion of obligations imposed universally by a statute of general application. The Privy Council stated this rule in Barker v Edger [1898] AC 748 at 754: "The general maxim is, 'Generalia specialibus non derogant'. When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms." But as the Privy Council said, in a further decision which involved the operation of the Local Government Act in its relation to the Mining Act 1906, things are "rarely as simple" as Barker v Edger suggested. In Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 at 686; [1975] AC 538 at 553-554; Lord Wilberforce explained: "... even where the earlier statute deals with a particular and limited subject-matter which is included within the general subject-matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact, or is superseded, and the cases in which the latter has been held are almost as numerous as the former." 39 What emerges, I think, from those authorities of relevance to the present case is the presumption that in enacting the Child Protection (Prohibited Employment) Act the legislature did not intend to contradict what was an existing and long-standing (for nearly 40 years) beneficial provision in the form of s 579. It is to be emphasised that that section allows individual persons relief against the continuing stigma of a conviction for an offence or a finding that a charge for an offence has been proven against them. And, it seems to me on the authorities, the presumption is reinforced by the rule that the legislature intends both statutes to operate in their own terms, and in their own particular areas of concern, unless by clear and express words the earlier provision be derogated from, in whole or in part, by the later provision. As Windeyer J observed in Butler (106 CLR at p 290), by reference to what Cleasby B had said in Hill v Hall (1876) 1 Ex D 411 at pp 413-414, "Every affirmative statute is a repeal of a precedent affirmative statute, where its matter necessarily implies a negative; but only so far as it is clearly and indisputably contradictory and contrary to the former Act in the very matter, and the repugnancy such that the two Acts cannot be reconciled". The question here, of course, is whether s 12(1) achieves that or whether viewed against s 579 both provisions can sensibly and conveniently operate together: see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at pp 320-321 per Mason J, as he then was, and Wilson J. 40 During argument, as I have said, it was contended for the applicant by Ms Lowson that there was no inconsistency between the respective provisions; but even if there were, such that the later Act impliedly repealed the earlier section, then, counsel said, s 30 of the Interpretation Act operated to preserve the rights accorded already to the applicant by s 579. On the other hand, Mr Singleton relied on s 12(1) as requiring s 579 to yield to its requirements as to the characterisation of a person as a "prohibited person" so that if there be any inconsistency, and he said there was, then s 12(1) expressly provided that the Child Protection (Prohibited Employment) Act prevailed over s 579; counsel denied any question of repeal existed, either expressly or impliedly, in that the section remained available to the applicant for all purposes other than the statute which was restricted to child-related employment. In light of the contest so defined, it is necessary first to focus on the subject matters of the competing provisions and then to construe them in the context of the language used to ascertain the true legislative intent. 41 The Child Protection (Prohibited Employment) Act on its face seems plain enough. Its object is the protection of children. That protection, at least in one respect and to which the statute is solely directed, is to be achieved by excluding from child-related employment a person considered inimical to the stated purpose and referred to as a prohibited person: see s 6. Central to the achievement of the protection is who or what class of person is within the description of a prohibited person. The statute defines such a person as one convicted (including a finding that a charge for an offence has been proven but without proceeding to a conviction) of a serious sex offence, whether before or after the commencement of the legislation on 3 July 2000: see s 5. A person may obtain relief against the strictness of those provisions by making an application and obtaining an order that the statute is not to apply to the person in respect of the specified offence: see s 9. 42 Against that, s 579 (with the wide scope of its application to all offences as given by s 3 of the Crimes Act) is plain in relation to any offence, including those of the type caught by s 5(3) of the Child Protection (Prohibited Employment) Act, that conviction for the 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" on certain conditions being satisfied. Those conditions, in short, are that the person entered into a recognizance and a period of 15 years has elapsed since the recognizance was entered into, provided the person observed the conditions of the recognizance and during that period was not otherwise convicted of an offence or a finding made that a charge had been proved against him. 43 The stated object of the Child Protection (Prohibited Employment) Act is to exclude from child-related employment prohibited persons, that is persons convicted of a serious sex offence, unless an order be made declaring the statute inapplicable because they do not pose a risk to the safety of children. In my view, the patent intent of the legislature was the protection of children. However, the statutory scheme seeks to achieve that by focussing upon conviction for a specified offence, albeit whether before or after the commencement of the statute. Section 579 has the object of a conviction for an offence, including a sex offence as here, being disregarded for all purposes whatsoever, that is legal and otherwise, after a period of 15 years on the stated conditions being met. The intent of the measure, clearly I think, is that after the expiration of the stated period, and in relation to what was not a substantial transgression, the person has removed the continuing stigma of a criminal conviction and the benefit of a clean criminal record. May those respective statutory objects, as so identified and having in mind the aim of the legislature in so enacting them, operate or stand together? I consider they can and there is nothing in the statutory scheme of the Child Protection (Prohibited Employment) Act, in my view, 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 (147 CLR 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. 44 My reasons for so construing the legislation may be stated quite shortly. 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. 45 In the result, I would construe the competing provisions to operate in the following way - · A prohibited person within the meaning of s 5(1) of the Child Protection (Prohibited Employment) Act is a person who has been convicted of a serious sex offence as specified in s 5(3) thereof, whether the conviction occurred before or after the commencement of the statute on 3 July 2000. · The subject conviction must be one as to which regard may be had in the sense that it is and continues to be properly recognisable and to have legal force and effect; if it were not so, the conviction could have no relevant and effective operation for the purposes of the Child Protection (Prohibited Employment) Act; it would be meaningless for that purpose. 46 Section 579 of the Crimes Act operates in respect of the conviction (within the extended meaning of that word by s 3 of the Child Protection (Prohibited Employment) Act) for a serious sex offence, as defined in s 5(3) of the Child Protection (Prohibited Employment) Act, where a recognizance was entered into, so that on the expiration of a period of 15 years since the recognizance was so entered and the other conditions contained in s 579 are met the conviction ceases to be a relevantly operative and effective conviction for the purpose of characterising a person as a prohibited person under the Child Protection (Prohibited Employment) Act. 47 Section 579 operates whether the conviction concerned occurred before or after the commencement on 3 July 2000 of s 5(1) of the Child Protection (Prohibited Employment) Act. 48 The view which I have reached, as I have said, was based upon the ordinary meaning of the competing statutory provisions and the legislative intent therefrom perceived. However, and somewhat as confirmation of the conclusion reached, I have relied upon the debate in both the Legislative Assembly and the Legislative Council during the second reading of the bill leading to the enactment of the Child Protection (Prohibited Employment) Act: see s 34(1)(a) of the Interpretation Act. In that respect, I have noted that the bill was introduced as a response to a key recommendation of the Wood Royal Commission into paedophilia and, although it is apparent that the statute extends well beyond that aspect to cover serious sex offences generally, it is proper nevertheless to read the statute in the context of its origins. Very much related to that approach, I felt confirmed in the ordinary meaning reached as to the provisions by what was said during the debate in the Legislative Council, extracts from which have been cited earlier, when Ms Forsythe spoke of balancing the rights of children with the rights of employees and the vice in enhancing the rights of children to the detriment of the rights of employees. I have to say that I too was concerned to strike a balance in applying the ordinary rules as to statutory construction. Further, the caution expressed by Mr Primrose had relevance to the aspect of a balanced approach. Of course, and of much importance in my view, the comments by the Minister in 1961 during the debate on the enactment of s 579, the relevant part of which has been cited above, only serve to further confirm the conclusion I have reached as to the interaction of the competing provisions. 49 Even if it be thought the construction I have given to the legislation concerned be too wide in the operation of s 579, but I do no think that it is, the circumstances of the applicant in the present case may properly be seen as free of any real doubt. Here, the applicant obtained the benefits of s 579 nearly 16 years ago on 12 March 1986 in respect of an offence committed nearly 32 years ago in January 1970. Apparently, those benefits so obtained have been since enjoyed without question and, properly and reasonably in my view, the applicant was able to have his earlier conviction for what was not a substantial transgression disregarded for all purposes whatsoever and as being no longer of any legal force or effect. In other words, he achieved very many years ago a benefit in March 1986 by the crystallisation of an accruing right since March 1971 under s 579. It would be extreme, I think, for legislation in the terms of the Child Protection (Prohibited Employment) Act, particularly having in mind the generality of s 12(1) thereof relating to inconsistency with other laws, for the applicant's clear and well-settled rights under s 579 to be removed. Of course, it is to be borne in mind that what the legislature has given that the legislature may take away and it is established also that a later parliament is not bound by what an earlier parliament has enacted: cf R v Kidman (1915) 20 CLR 425 at p 451 per Higgins J. However, I do not consider the legislature in enacting the Child Protection (Prohibited Employment) Act intended to contradict itself from what was already contained in s 579 of the Crimes Act and had been for nearly 40 years. 50 The position of the applicant with the rights accrued to him by s 579 very much involves whether the Child Protection (Prohibited Employment) Act was intended to change the law and to remove such accrued rights to permit the full and unfettered operation of the statute in respect of prohibited persons. The common law principle in approaching such a problem was stated long ago by Wright J in In re Athlumney; Ex parte Wilson [1898] 2 QB 547 at pp 551-552, as follows : Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. 51 In what is often referred to as the leading case on this question, Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at p 267 shortly and similarly summarised the position thus : The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. 52 I am satisfied that a review of the provisions of the Child Protection (Prohibited Employment) Act discloses nothing to suggest that the legislature intended to derogate from or otherwise affect retrospectively a right already crystallised under s 579. I am firmly of that view even if, which I do not think to be the case, the legislature intended to remove the rights accruing but not yet crystallised under s 579. To so view the matter would not only infringe the general common law principle but also that principle as enshrined in s 30(1)(b), (c) and (4)(b) of the Interpretation Act as to the protection of statutory rights and even in a situation where those rights have merely commenced to accrue under the earlier legislation in the sense of being contingent. As Gibbs J, as he then was, observed in Mathieson v Burton (1971) 124 CLR 1 at p 23, in relation to the similar provisions in s 8(b) of the Interpretation Act of 1897 - "... does not apply where there is merely a hope or expectation that a right will be created ... but it does protect anything that may truly be described as a right, 'although the right might fairly be called inchoate or contingent'." In so saying, his Honour referred with approval to the general common law rules of construction as stated in Athlumney and in Maxwell. 53 For the foregoing reasons, I conclude that the applicant is not a "prohibited person" within the meaning of that expression in s 5 of the Child Protection (Prohibited Employment) Act and, accordingly, that Act has no application to him in respect of the offence committed by him in January 1970 and for which he was convicted but obtained a recognizance in March 1971. That conclusion is based upon the operation in favour of the applicant of s 579 of the Crimes Act. He is entitled to a declaration in the terms sought. 54 I make the following orders - 1. DECLARE that 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. 2. ORDER that costs be reserved. 3. DIRECT that the Industrial Registrar serve a sealed copy of these orders on the Commissioner of Police. 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.