The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136

New South Wales Supreme Court

CITATION : The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136

HEARING DATE(S) : 2/11/05

JUDGMENT DATE : 10 November 2005

JUDGMENT OF : Cooper AJ at 1

DECISION : 1) The appeal is dismissed; 2) The orders of the Tribunal are confirmed; 3) I invite submissions as to costs.

LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998

CASES CITED : Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

The Commissioner for Children and Young People (Plaintiff) PARTIES : IK (First Defendant) The Adminitsrative Decisions Tribunal (Second Defendant)

FILE NUMBER(S) : SC 30035/05

Plaintiff: P Singleton COUNSEL : Defendant: R Killalea

Plaintiff: Crown Solicitor's Office SOLICITORS : Defendant: Brock Partners Solicitors

LOWER COURT JURISDICTION :

LOWER COURT JUDICIAL OFFICER : Ms A. Britton

- 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

ACTING JUSTICE COOPER

THURSDAY 10 NOVEMBER 2005

30035/05 The Commissioner for Children and Young People (Plaintiff) v IK (First Defendant) The Administrative Decisions Tribunal (Second Defendant)

JUDGMENT 1 HIS HONOUR: This is an appeal against an order of the Administrative Decisions Tribunal (Judicial Member Ms A Britton) dated 17 March 2005 that the Child Protection (Prohibited Employment) Act 1998 does not apply to the first defendant in respect to two offences of "indecent assault male" for which he was convicted on 9 May 1975. 2 The second defendant has filed a submitting appearance and it is the first defendant who has resisted the order sought on the appeal. BACKGROUND TO THE PROCEEDINGS BELOW. 3 At the time of the hearing before the Tribunal the first defendant was a forty nine year old man who wished to apply for employment as a driver of buses and/or coaches. Included within his duties could be employment on school buses or at overnight camps for children. 4 Such employment constitutes "child-related employment" within the meaning of section 3 of the Child Protection (Prohibited Employment) Act 1998. 5 In May 1975 the first defendant had been convicted on two charges of indecently assaulting two boys then aged five and three. The offence had occurred in 1974 when the first defendant was twenty years of age. 6 These offences were "serious sex offences" within the definition in section 5 of the Act. Consequently the first defendant is a "prohibited person" within the meaning of section 5 (1) of that Act. 7 Under section 6 of the Act a prohibited person, such as the first defendant, commits an offence if he applies for, undertakes or remains in child related employment. 8 The effect of these provisions is to preclude the first defendant from employment of the type that he was seeking. 9 Section 9 of the Act gives to the first defendant the right to apply to the Administrative Decisions Tribunal (ADT) for an order declaring that the Act is not to apply to him in respect of the two offences referred to above. 10 The first defendant made such an application to the ADT and, following a hearing, the Tribunal ordered on 17 March 2005 that the Act does not apply to the first defendant in respect of two offences of "indecent assault male" for which he was convicted on 9 May 1975. 11 Subsections 4 and 5 of section 9 of the Act provide:- "(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 for 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, (a1) the period of time since those offences were committed,