BMP v Children’s Guardian [2015] NSWCATAD 201

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BMP v Children's Guardian [2015] NSWCATAD 201 Hearing dates: 29 April 2015 Date of orders: 02 October 2015 Decision date: 02 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: ADCJ Hon G Mullane (Principal Member) Decision: 1.The application by the Applicant for enabling orders filed 29 September 2014 is refused and dismissed; 2. Publication or broadcasting of the name or other identifying information of the Applicant or any witness is prohibited. Catchwords: Working With Children Clearance – Application for Enabling Orders – Convictions - child pornography Legislation Cited: Child Protection (Working With Children) Act 2012 Child Protection (Prohibited Employment) Act, 1998 Crimes Act 1900 Cases Cited: Commission for Children and Young People v V [2002] NSW SC 949 Category: Principal judgment Parties: BMP (Applicant) Children's Guardian (Respondent) Representation: Counsel: B Quinn (Applicant) V Hartstein (Respondent)

Solicitors: Crown Solicitor (Respondent) File Number(s): 1510543 Publication restriction: Publication or broadcasting of the name or other identifying information of the Applicant or any witness is prohibited.

Reasons for decision

Introduction 1. On 28 September 2004 Police raided the home of the Applicant's parents, where he resided. The Police took possession of his computer, printed photographs and other items. 2. The Applicant was arrested and charged that day with 3 counts of possession of child pornography under the then section 578B of the Crimes Act 1900. The first was in respect of 36 images depicting young females aged approximately 8 to 15 in various stages of undress and the second was in relation to 58 (mpg) movie files depicting young girls approximately aged 9 to 15 in various stages of undress. The third charge was for possession of child pornography being 400 to 600 movies on CD Roms depicting girls appearing to be aged in the range 9 to 15 years. 3. Section 578B of the Crimes Act 1900 at the time of the offence provided as follows: - 578B. Possession of child pornography In this section: "child pornography" means a film, publication or computer game classified RC, or an unclassified film, publication or computer game that would, if classified, be classified RC, on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16. "Classification Board" means the Classification Board established under the Commonwealth Act. "classified" means classified under the Commonwealth Act. "Commonwealth Act" means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth. "computer game" , "film" and "publication" each have the same meanings, respectively, as in the Commonwealth Act. "law enforcement agency" has the same meaning as in section 13 of the Criminal Records Act 1991, and includes a person or body prescribed by the regulations for the purpose of this definition. A person who has in his or her possession any child pornography is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years (or both) Nothing in this section makes it an offence: for any member or officer of a law enforcement agency to have any child pornography in his or her possession in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under any Act or law, or for any person to have any child pornography in his or her possession in the exercise or performance of a power, function or duty relating to the classification of such material conferred or imposed on the person by or under any Act or law, or for a person to have in his or her possession any film, publication or computer game that is classified other than as RC. Proceedings for an offence under this section: are not to be commenced later than 2 years after the date of the alleged offence, and in the case of a film, publication or computer game that is unclassified at the time of the alleged offence, are not to be commenced until the film, publication or computer game concerned has been classified, and are to be dealt with summarily before a Local Court. (4A) However, subsection (4) (b) does not prevent a person being arrested for, or charged with, an alleged offence against this section before the film, publication or computer game concerned has been classified. It is a defence to a prosecution under this section to prove: that the defendant did not know, or could not reasonably be expected to have known, that the film, publication or computer game concerned is or contains pornographic material involving a child under 16, or that the person depicted in the material was of or above the age of 16 at the time when the film, computer game or publication was made, taken, produced or published. In any proceedings under this section, a certificate issued under section 87 of the Commonwealth Act signed (or purporting to be signed) by the Director of the Classification Board (or by the Deputy Director of the Classification Board) and stating that the film, publication or computer game concerned is classified RC on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16 is prima facie evidence of the matter stated in the certificate. A court that convicts a person of an offence under this section may order that any child pornography in respect of which the offence was committed is to be destroyed or otherwise disposed of as the court thinks fit. 1. The Applicant had obtained the items from the internet using his home computer. 2. The Applicant was convicted of the first 2 charges by a Magistrate in a Local Court Downing Centre, Sydney, on 8 September 2005 and sentenced to perform 250 hours of Community Services. The prosecution withdrew the third charge. 3. The Applicant appealed the convictions to the District Court. On 14 July 2006. the convictions were confirmed and the sentences were reduced to 150 hours of Community Services. 4. Section 578B of the Crimes Act 1900 has subsequently been repealed and replaced by other provisions. 5. Nevertheless the conviction rendered the Applicant a disqualified person under the Child Protection (Working with Children) Act 2012 ("the Act") and the Act, subject to provisions that will be referred to later, prohibits the Children's Guardian from issuing a Working with Children Check Clearance to a disqualified person. 6. For many years the Applicant had been employed as a teacher in a high school. 7. In accordance with the requirements of the Act, the Applicant applied to the Children's Guardian in August 2014 for a Working with Children Check Clearance. The Children's Guardian notified the Applicant on 5 September 2014 that the application for a check clearance was refused because of the disqualifying offences. His employment was terminated when he was refused a Working With Children Check Clearance. 8. The Applicant has since been working from home as a music teacher and wishes to be able to teach children. This was the hearing of the application of 29 September 2014 of the Applicant under s.28 of the Act for enabling orders requiring the Children's Guardian to disregard the convictions and issue a check clearance.