WN v Commission for Children and Young People [2011] NSWADT 179

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: WN v Commission for Children and Young People [2011] NSWADT 179 Hearing dates: 2 June 2011 Decision date: 25 July 2011 Jurisdiction: Community Services Division Before: L Goodchild, Judicial Member Decision: The application is dismissed. Catchwords: Declarations; prohibited person. Legislation Cited: Administrative Decisions Tribunal Act 1997; Commission for Children and Young People Act 1998 Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; Commission for Children & Young People v UR [2007] NSWSC 1099; Commission for Children and Young People v V [2002] NSWSC 949; R v Commission for Children and Young People [2002] NSWIR Comm 101; Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136. Category: Principal judgment Parties: WN (Applicant) NSW Commission for Children and Young People (Respondent) Representation: Counsel D Ward (Respondent) WN (Applicant in person) State Crown Solicitor (Respondent) File Number(s): 104028 Publication restriction: s.126 of the Administration Decisions Tribunal Act 1997 applies.

REasons for decision 1The applicant, who in these reasons will be referred to by the pseudonym "WN", applies to the Administrative Decisions Tribunal for an order under the Commission for Children and Young People Act 1998 ("the Commission Act"). WN is a "prohibited person having committed a serious sex offence" , namely for the offence of indecent assault decided in the Campbelltown Children's Court in June 1994. At the same time he was also convicted of one count of obscene exposure. For these offences he was sentenced on each charge to a period of probation for 6 months. The applicant appealed against that conviction to the District Court and that appeal was heard in the Campbelltown District Court in November 1994 where the appeal was dismissed and the conviction was confirmed. 2The applicant is a prohibited person by operation of s.33B of the Commission Act because, pursuant to s.33B (3) (a) of the Commission Act the conviction of the applicant of indecent assault falls within the definition of a serious sex offence. The conviction of obscene exposure does not fall within the definition of serious sex offence. The applicant was aged 15 at the time of the offence. Unless the order WN seeks is granted, it will be an offence for him to apply for, undertake or remain in child related employment (according to s.33C of the Commission Act ). 3The applicant made an application to the Commission for Children and Young People seeking an order under s.33H of the Commission Act . By correspondence of 19 October 2010, Megan Mitchell, Commissioner, advised the applicant that the Commission had been unable to determine that he did not pose a risk to the safety of children at this time. That correspondence, which was attached to the applicant's application, discloses that the Commissioner made this determination because of an insufficiency of information provided by the applicant. 4The applicant then filed on 4 November 2010 an application to this Tribunal for a declaration pursuant to s.33H of the Commission Act .