KQ v Commission for Children and Young People [2012] NSWADT 62

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: KQ v Commission for Children and Young People [2012] NSWADT 62 Decision date: 11 April 2012 Jurisdiction: Community Services Division Before: S. Higgins, Deputy President Decision: 1.The applicant's application for an order is refused. 2.The applicant may bring a further application for an order at any time after 2 years from the date of this decision. Catchwords: Declaration - prohibited person - whether applicant has discharged his onus that he poses no risk to the safety of children Legislation Cited: Administrative Decisions Tribunal Act 1997 Commission for Children and Young People Act 1998 Child Protection (Prohibited Employment) Act 1998 (repealed) Crimes Act 1900 Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8 Commission for Children and Young People v V [2002] NSWSC 949 (2003) 56 NSWLR 476 R v Commission for Children and Young People [2002] NSWIR Comm 101 UB v Commission for Children and Young People [2006] NSWADT 125 Category: Principal judgment Parties: KQ (Applicant) Commission for Children and Young People (Respondent) Representation: KQ (Applicant in person) Crown Solicitors Office (Respondent) File Number(s): 104018 Publication restriction: s 126 of the Administrative Decisions Tribunal Act 1997

REasons for decision

Introduction 1COMMUNITY SERVICES DIVISION: S Higgins, Deputy President. These proceedings fall within the terms of section 126 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). By reason of that section, the applicant's name is substituted with the pseudonym 'KQ'. 2KQ seeks an order under section 33I of the Commission for Children and Young People Act 1998 (the Commission Act) declaring that Division 2 of Part 7 of that Act is not to apply to him in respect of an offence of which he was convicted, in the Local Court of New South Wales, on 29 March 2007. The offence was an offence of 'assault with act of indecency' contrary to section 61L of the Crimes Act 1900. For the purpose of this application, this offence is referred to as the 'index offence' as it is the offence that brings KQ within the terms of the Commission Act. 3As a consequence of this index offence, KQ is a 'prohibited person' and is prohibited from applying for, obtaining or remaining in 'child-related employment' (see sections 33B and 33C of the Commission Act), unless he obtains an order under section 33H or 33I of the Commission Act. 4The respondent, the Commission for Children and Young People (the Commission), opposes an order being made in favour of KQ under the Commission Act. 5KQ is 55 years of age and wishes to work as a translator and interpreter. In July 2010, he sought to work as a contractor in the Kurdish languages for the Translating and Interpreting Service (TIS). I understand that TIS provides interpreting services to the Department of Immigration and Citizenship. KQ was unable to take up a position with TIS, unless he obtained a declaration that the Commission Act did not apply to him in regard to his index offence. As a consequence, in August 2010, he lodged this application with the Tribunal. When lodging his application for a declaration, KQ also made an application for an urgent stay pursuant to section 33K of the Commission Act. The stay application was heard on 20 September 2010 before Judicial Member Leal. On 21 September 2010, Judicial Member Leal refused KQ's stay application and made directions for the filing and serving of evidence and set the matter down for hearing on 19 November 2010. 6In 2009, KQ had made a similar application for a declaration under section 33I of the Commission Act. The Tribunal dismissed KQ's stay application, on 10 March 2009. In dismissing the application, the Tribunal granted KQ leave to make a further application, at any time, for a declaration under Part 7 of the Commission Act with respect to the index offence. 7KQ's current application has been protracted as, in October 2010, he requested that the 19 November 2010 hearing date be postponed. KQ's application was then listed for directions on 10 February, 26 May and 7 July 2011. On 7 July 2011, by consent, I listed the matter for hearing on 29 August 2011. At the commencement of the hearing, KQ again sought an adjournment. As he did not appear to be well I listed the matter for further directions on 20 October 2011. At this directions hearing, KQ indicated that he wanted his application to proceed and that he only wished to cross-examine Dr Allnutt, the psychiatrist, instructed by the respondent, to assess KQ and to prepare a risk assessment report. So as to accommodate KQ's request, with the consent of the Commission, was set down for further hearing on 7 November 2011. The parties agreed that the matter could otherwise be determined on the papers. 8For the reasons set out below, I am not satisfied that KQ has discharged the onus that is placed on him to establish that he does not pose a risk to the safety of children. There is no question that he has had a difficult life and suffers from depression and anxiety. Despite considerable adversity KQ has obtained a University degree and has previously successfully worked as an interpreter and translator here in Australia and in Iraq prior to migrating to Australia as a refugee in 1993. However, as identified by the experts, Dr Lennings and Dr Allnutt, KQ has not been able to show that he has taken the necessary steps in addressing his contravening conduct, the subject of his index offence, and developing skills that will enable him to recognise and avoid circumstances of this nature arising in the future. As a consequence, the experts, Dr Lennings and Dr Allnutt both expressed the opinion that KQ poses a low to moderate risk to the safety of children. That risk they say arises at times when KQ experiences emotional distress or mood disturbances. For the reasons set out below, I agree with the opinions expressed by the experts.